TALES FROM THE APIL CONFERENCE 1: SOCIAL MEDIA AND THE PERSONAL INJURY LITIGATOR

I have been at the APIL annual conference this week. Ostensibly to give a talk about expert evidence, but a blogger (indeed any practising lawyer) can never miss an opportunity to pick up ideas. I went to a “Fee earner discussion clinic”.  One of the interesting points to come out of that clinic was the role of social media in personal injury cases.  Participants at the clinic routinely spoke to an warned their clients about it. Clients routinely ignored the warnings given.

PRACTICE POINTS

  • It is prudent to warn a client in relation to social media and litigation.
  • There is also a duty to warn a client of the need to preserve documents.  This may include Facebook and other social media posts, photographs and documents. (There are American cases where lawyers and clients have got into serious trouble after a lawyer advised the client to destroy all evidence of their social media activity.)
  • There are duties on the parties preparing for trial to come to substantial agreement in relation to the way in which social media is presented. This can include a duty to protect the position of third parties.

FACEBOOK FRIENDS

The Irish Times carried a report of a couple who staged a car crash. They claimed not to know each other, however they appeared in each other’s profile pictures.

“SOCIAL MEDIA, LITIGATION AND LITIGATORS”

This is the title of an article that appeared in the American Bar Association Law Practice Today That article identifies a number of key issues:-

  • Litigators are using social media for discovery of information about clients, opponents, witnesses and others.
  • That there could be malpractice (negligence) issues if a litigator fails to conduct social media searches.
  • One lawyer observes:
    “I can see it being a big malpractice issue especially in the world of personal injury law. I think anybody defending a case where pain and suffering and permanent physical injury are at issue must dig into the plaintiff’s social media from day one. On the other side of the coin, plaintiffs need to either stay off social media or let their lawyers screen everything before it gets posted.”
  • Courts are increasingly receptive to evidence gained through social media.
  • There can be disclosure issues in relation to “cleaning” up social media pages.
  • Lawyers have to develop strategies to advise clients about the use of social media and litigation.

IT CAN BE YOUTUBE AS WELL

We have looked before at the decision of Judge Seymour in Cirencester Friendly Society -v- Parkin[2015] EWHC 1750(QB). A claimant under an insurance policy was found to be fraudulent:

  1. Nemesis overtook from Mr Parkin most dramatically because, like so many people nowadays, in particular those who seem minded to seek to perpetrate frauds, he seemed incapable of keeping off the Internet and sharing the true nature of his activities through social media. So it was that it has transpired that, far from being incapable of working and suffering from any such condition as he has described, he is actually an aficionado of a type of sports supercar called “Noble” and seems to have spent the greater part of the last 10 or 12 years refurbishing a Noble sports car and driving it, sometimes racing it, principally in Cyprus. Mr Parkin seems to live in Cyprus, or at least lived in Cyprus certainly until 2012, with, and not separately from, his wife and seems to have continued to use cannabis.

TWITTER TROUBLES

We have also looked at the the decision of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd [2015] EWCA 2264 (QB) when one of the claimants was cross-examined about Twitter interactions.

  1. In December 2008 and December 2009 Mr Swift was involved in road traffic accidents, and brought claims for compensation which were successfully resolved.
  2. On 22nd February 2013, Mr Swift was involved in the following conversation on Twitter:
Leon Swift either of you’s jumped on this sonae claim bandwagon?
TC been all over the radio
MC residents living close going to solicitors due to harmful emissions from the plant
MC looks like everyone’s doing it now because it’s shut down
Leon Swift they’ve admitted liability so anyone living or working in the area at the time of the fire can claim
MC get on it ken/tom
MC not for me #too honest
Leon Swift too honest ya, good one matt. I’m getting involved I reckon, pays for the summer holiday if it goes thru
TC ha ha you’re a bad man Leon
MC he’s a fraud Tom
Leon Swift takes a fraud to know a fraud Matthew. Mr ‘I was in that car that crashed ye’ #showmethemoney
MC my neck was sore when Dave crashed #thetruth
Leon Swift Asking for trouble driving in flip flops
MC if you crash give us a shout #whiplashclaim
MC I’m sure you was fine that time Dave had a crash
Leon Swift least I was in the car though Matthew
MC so was I”
  1. Mr Swift tried to dig himself out of the massive hole created by these exchanges. He said that the use of the term “bandwagon” was not the best choice of words. He agreed that the Tweets could be construed as indicating that any claim he made would be fraudulent. However, he told me that he was not saying at the time that his claim was not genuine. He well understood, he said, that an admission of liability did not mean that one could recover  damages regardless of injury.
  2. watched Mr Swift very closely during the course of Mr Jones’ well-briefed and well-constructed cross-examination. One possible explanation for his extreme discomfiture and obvious embarrassment was that his Tweets were being taken out of context, and he was ashamed by the impression they may have been making. Another explanation is that he well knew that the Tweets contained accurate insights into his true state of mind. Making allowances as I do for the degree of banter that may accompany much discourse over these social networks, but having regard to all the available evidence, I regret that I have to favour the second explanation.
  3. Mr Swift is a well-educated young man and ought to be ashamed of himself. The Defendant’s pleaded case of fraud has been proved to the requisite standard. His claim fails.

FACEBOOK AND FRAUD

It is dealing with allegations of fraud that a study of Facebook has become most prevalent.

FACEBOOK FRIENDS: YOU TWO MUST KNOW EACH OTHER

Similarly in the trial in Nama -v- Elite Courier Company Ltd (5th March 2015, Lawtel) Deputy District Judge Lindwood considered an argument that a witness did not know the claimant before the trial.

“I do not accept that she did not know Mr Al-Jabri before the accident. I find it highly unlikely that a fellow engineer (as appears from the photographs of him wearing clothing suitable for an engineer) – and a fellow Iraqi who was her Facebook friend since 2011, [the accident happened in  2013] who lives in Birmingham – just happened at ten o’clock that morning to be walking (as opposed to using the underpasses) on this very busy roundabout on the outskirts of London.”

FINDINGS OF FUNDAMENTAL DISHONESTY

In  Pinkus v Direct Line [2018] EWHC 1671 (QB) HHJ Coe referred to social media activities as one of, a large number, of reasons why the claimant was found to be fundamentally dishonest.

“I find that the fact that he can put posts on social media in the way that he has and clearly get enjoyment from all sorts of everyday activities is a reflection of the fact that he has fabricated/exaggerated his symptoms and even in the first 6 months they were not as severe as he has depicted and this further supports my conclusion that he has significantly exaggerated and fabricated his difficulties.”

ASSESSING CREDIBILITY IS NOT AS DIFFICULT AS IT USED TO BE

In the Canadian case of Bruni -v- Bruni judge J.W. Quinn noted

“In recent years, the evidence in family trials typically includes reams of text messages between the parties, helpfully laying bare their true characters. Assessing credibility is not nearly as difficult as it was before the use of e- mails and text messages became prolific. Parties are not shy about splattering their spleens throughout cyberspace.”  

FACEBOOK SHOWS YOU GOING OUT

In Rathore -v- Bedford Hospitals NHS Trust [2017] EWHC 863 (QB) Mr Justice Blake also found that Facebook played a key part in assessing credibility.  The claimant said she never went out.

The experts made opposing observations on the relevance of the Facebook and diary entries to their opinions, whilst recognising that these were ultimately matters of evaluation by the court. Dr Valentine was concerned that the material raised veracity issues and in particular noted a smiling Facebook post from Nando’s with her husband on 7 August 2014, the same day as his examination of the claimant. Although she would needed to eat something that day he would not have predicted the activity recorded after seeing her presentation with severe and disabling pain and her account of her relationship with her husband. Her claim that she does not go anywhere unless she has to is undermined by the Facebook material and does not support a genuine presentation at the time of her examination. He also noted her ability to pick up a form spontaneously that was documented by Dr Master, four months later.

 

ONLINE RANTS COULD BE DISCLOSABLE

In Martin -V- Giambrone [2013] NIQB 48 the defendant, who had a Mareva injunction against him wrote, after the hearing:

“They thought they knocked me down, now they will see the full scale of my reaction. F*** them, just f*** them. They will be left with nothing.

It was held that the post could be disclosed both to the judge dealing with the Mareva injunction and the judge hearing the main action.  The judge rejected an argument that the post was private and confidential. He held it was relevant and disclosure was necessary for disposing fairly of the proceedings and the main action.

GUIDANCE IN LOCKE: (AS SO OFTEN IN LITIGATION IT ALL COMES DOWN TO BUNDLES)

Important guidance as to the presentation of social media at trial is given in the judgment of Andrew Edis QC (as he then was) in Locke -v- Stuart [2011] EWHC 399(QB)
3 lever arch files of Facebook searches carried out by the solicitors or agents of the Second Defendant to determine what links between people may be shown by their lists of friends on their publicly available Facebook pages. These searches were done in respect of 28 people in November 2008, April 2009, January 2010, February 2010, and September 2010 (Facebook Bundles 1 and 2) and repeated more recently in respect of a small selection of those individuals (Facebook Bundle 3). I shall call these FB/1, FB/2 and FB/3. Those searches could not be repeated recently in respect of some of the key characters in this case because the privacy settings on Facebook had been changed. Jaimes Locke, the Claimant’s brother, told me that he had done this because of a problem with a girlfriend, and not to avoid further scrutiny by the Second Defendant.”
Case Management
33. Far too much documentation has been placed before the court. There are extenuating circumstances in that this claim was once part of a series and the extensive documentation in the bundles may perhaps have been necessary to deal with all the claims. There was an opportunity to reduce the documentation, which was not taken.
34. It should be possible to prepare a document, based on the documentation including the witness statement of Mr. Smith and the 3 lever arch files of documents, together with the further 3 lever arch files of Facebook searches and only the necessary material, can be adduced to deal with that. It may further also identify which inferences are agreed and which are not.
35. A document can easily be devised which sets out in a short form how entries on Facebook are created and what inferences may safely be drawn from them. This document, having been created, can be used in any case where this class of evidence is adduced. I think that a significant amount of time of the court was taken up in a debate about the strengths and weaknesses of Facebook evidence where really an agreement should be capable of being reached on this question.
36. The process of agreeing the primary facts and the proper limits of any inferences which they may justify will start with a statement such as that prepared by Mr. Smith in this case, and will be assisted if particular care is taken to include appropriate concessions as to the proper limits of any “link” contended for.
37. On 1st September 2010 District Judge Coffey gave conventional directions for the compilation and lodging of an agreed trial bundle. It will appear from the above that this was not strictly complied with: each party lodged its own documents. This was the stage at which the parties should jointly have addressed the question of what documentation was really required to resolve this case.
38. I explored the question of confidentiality and the use of witness statements from one action in another action with Mr. Smith. He satisfied me that this was considered in the present case and that the relevant controls on the use of material were observed. I mention this because I regard this as an important feature in this type of case and would regard it as a serious matter if it were not properly attended to. This is related to paragraph 39 below.
39. Insurers making allegations of the kind which I have found proved in this case must do so with care. Their legal advisers have obligations which require them to advance such allegations only on proper grounds. I consider it to be inappropriate for trial bundles to contain the names and personal details of people with the suggestion that they have been guilty of fraud unless there are proper grounds evidentially for that assertion. I have found that this occurred in the case of an accident in August 2007 in Liverpool, and it may well be that it has happened in other cases too.
40. In making these observations I intend no criticism of any of the lawyers in this case. I am very grateful to both counsel for helping me with great skill through a factually complex case in a relatively short period of time. I have heard from both solicitors in evidence and accepted what they say without reservation. The documents, though too voluminous, have been properly prepared and it is quite plain that Mr. Smith in particular has done an enormous amount of work on this case with a great deal of care. The purpose of the inclusion of this section in this Judgment is to record my experience of trying this case in the hope that it may assist the case management and preparation of any further similar cases which may arise.

 PREDICTIONS GOING FORWARD

In an article for SCL Chris Dale made Predictions for 2015  these included the important observations

“This checklist idea will be encouraged by a case in which the lawyers will simply forget to ask their clients or their opponents about some source of electronic data whose absence becomes painfully obvious at a late stage in the proceedings. This might be an apparently trivial social media source like Twitter, Facebook or LinkedIn or something else which makes the lawyers suddenly realise that all this talk about ‘the cloud’ embraces everyday applications which people use to communicate. It might be a photograph whose metadata pins a witness to a place and a time. These are no less a ‘document’ than an e-mail or a Word file. The problem won’t come simply because of a formal defect in compliance with the rules but because the overlooked source contains evidence which turns the case”