PROVING FUNDAMENTAL DISHONESTY – WHEN NEITHER THE CLAIMANT OR DEFENDANT ARE IN COURT: TELEMATIC EVIDENCE – NOW HERE’S A THING
I am grateful to barrister Mark Roberts for sending me a copy of the decision of HHJ Gargan in Wise -v- Hegarty & Alpha Insurance (9th July 2019) a copy of which is available here. OT APPROVED CRAWFORD D10YJ706 WISE HEGARTY ALPHA 09.07.19 (MIDD) – J v4
It involved a finding of fundamental dishonesty in a road traffic case where neither driver attended court and highlights the importance of telematic evidence.
The claimant brought an action for damages against the first defendant alleging that there had been a road traffic collision. The first defendant’s insurer was joined into the action as a second defendant. The second defendant alleged that the claim did not occur.
- Data from the first defendant’s vehicle showed it was not at the accident scene and had not been involved in an accident.
- There were substantial social media links between the claimant and the occupants of her vehicle and the defendant.
The claimant’s solicitors came off the record prior to trial. The claimant did not attend the trial but the judge was satisfied that the claimant knew of the trial,
COULD THE JUDGE MAKE A FINDING OF FUNDAMENTAL DISHONESTY IN A CASE WHERE THE CLAIMANT DID NOT ATTEND?
The judge held that he could make findings of fundamental dishonesty despite the absence of the claimant.
“I raised concerns as to whether that was appropriate and Mr Roberts was able helpfully to refer me to the case of Alpha Insurance A/S v (1) Lorraine Roache (2) Brendan Roche  EWHC 1342 (QB), a decision of Mrs Justice Yip, in which Mr Roberts appeared for the successful Appellant. The circumstances in that case were that the Second Claimant, who was accused of fundamental dishonesty, served a notice of discontinuance, or perhaps both Claimants served a notice of discontinuance, but in any event, a notice of discontinuance was served the day before trial.
8. On the face of it, that would normally bring the proceedings to an end. However, the CPR 44 PD 12.4 provides:
“(a) (that) the court will normally direct with issues arising out of an allegation that the claim is fundamentally dishonest be determined at the trial;
(b) where the proceedings have been settled, the court will not, save for exceptional circumstances, order that issues arising out of an allegation that the claim was fundamentally dishonesty be determined in those proceedings;
(c) where the claimant is served notice of discontinuance, the court may direct issues arising out of an allegation the claim was fundamentally dishonest be determined notwithstanding that the notice has not been set aside pursuant to rule 38.4”
I need not read (d). The point being that even when notice of discontinuance is served, the court may direct that issues arising out of an allegation that a claim was fundamentally dishonest can still be determined.
9. In my judgment, if such an order can be made where the claim has been discontinued, it can necessarily be made where the claim has not yet been determined and the Claimant has simply failed to attend. Therefore, I give permission to Mr Roberts to call evidence on the issue of fundamental dishonesty, which I will determine as part of the process and as part of his application that the claim be dismissed and/or struck out.
THE EVIDENCE AT TRIAL
The second defendant called a telematics expert, Mr Street. He was able to say where the first defendant’s car was at the time of the alleged accident,.
Mr Street is able to pinpoint where it was inactive and that is on Midlothian Road, Hartlepool TS25. That is some 2.7 miles away from the point of the alleged accident as the crow flies, which indicates it will be slightly longer if someone was actually driving it. However, the car cannot have been at the scene of the accident, according to the telematics data, at the time the accident occurred. I have had to consider the reliability of that evidence and Mr Street has explained that generally, a firm fix can be given to a vehicle’s position if four satellites confirm that position. In this case, some 15 to 19 satellites have confirmed the vehicle’s position on Midlothian Road and Mr Street contends that that makes the position evidence highly reliable.
16. Mr Street was then asked about whether there could have been a collision at some other time during the 7 February or, indeed, on the days either side of that date. His evidence is that there is nothing to suggest that there was any untoward incident involving this vehicle on any of those three dates. The box is sufficiently sensitive that it has an accelerometer which measures the extent to which the vehicle accelerates or stops or the G forces which are applied to it. G events can fall into four categories. It is perhaps unfortunate that the first category of event is called a “no event” but there it is. A “no event” deals with incidents where the vehicle continues to move after the incident and is consistent with the vehicle bumping in a pothole or dealing with a road deviation. The second class of event is “static G events” which occur to the vehicle whilst it is stationary; then there are “low G events” which occur when the forces are less than five miles per hour and finally there are “high G events” which are intended to reflect circumstances where there are forces of more than 2 G, which is the level at which airbags would tend to inflate.
WAS THIS EVIDENCE RELIABLE?
The judge held that that the evidence was reliable, indeed compelling.
18. I must then ask what evidence I have about the reliability of the data. Simply this, I have evidence from Mr Street that the box was working throughout the period. When the vehicle is turned off, there is a battery within it which is responsible for the “wake up events”. We know that the wake up events were being transmitted after 11.20pm on the day of the accident. Therefore, there is no suggestion that the battery in the box could have been flat and not able to record a G event that occurred after the ignition had been turned off or gone off because of a stall, as was suggested by Mr Hegarty. In those circumstances, Mr Street’s evidence is compelling. Nevertheless, I must look at what evidence there is to put into the balance the other way on this issue. However, the answer to that is that there is no such evidence. The Claimant and First Defendant were given the opportunity to put in written evidence to rebut this telematic evidence of fraud and chose not to do so. Further, Mr Hegarty has been given the opportunity of giving oral evidence today in rebuttal, even without such a witness statement, and chose not to avail himself of that opportunity. Therefore, there is nothing to contradict Mr Street’s evidence.
19. On that basis, I am quite satisfied that on balance of probabilities, the accident cannot have happened as alleged.
20. Further, it is plain, in my judgment, that there is further evidence to support the allegation that the accident did not happen as alleged and has been invented. There are significant Facebook and social media links between the occupants of the Claimant’s vehicle, including the Claimant herself, and the Defendant. They are not direct links but there are a considerable number of linked individuals between all four participants. That may be explained by the fact that all went to the same school and therefore all have multiple friends of Facebook. It is not, for example, a situation where each has only five friends or ten friends or 20 friends. Each has many, many friends which gives scope for everyone you have ever been at school with coming on board as a friend. Nevertheless, those links add weight to the suggestion from the Second Defendant that there has been a fraudulent conspiracy here to invent the circumstances of the accident as such a conspiracy is more likely to be agreed between people who know each other or have common friends.
THE JUDGE’S FINDINGS
The judge found that both the claimant and the first defendant had been fundamentally dishonest.