EVIDENCE OF STATISTICS FROM DEFENDANTS’ SOLICITORS RELATING TO CLAIMS NOT EXCLUDED: HIGH COURT DECISION

The judgment of Mr Justice Freedman in Kerseviciene v Quadri & Anor [2022] EWHC 2951 (KB) is of considerable interest to anyone involved in litigation, particular personal injury litigation.  The judge upheld a finding that a witness statement from the employee of the defendants’ solicitors firm should be admitted at trial.

 

THE CASE

Five claimants brought damages for personal injury. In each case damages were said to be between £5,000 and £10,000.

The defendants served witness evidence from an employee of the defendants’ solicitors.  That statement provided an analysis of claims data collected by DWF in relation to claims submitted by those being represented by the claimants’ solicitors.  The claimants applied to exclude that evidence.  The claimants’ application was unsuccessful before the Circuit Judge.  The claimants appealed. They were given permission to appeal on the grounds that the statement in question amounted to impermissible expert evidence, introduced in contravention of CPR Part 35, alternatively that the statements were innately unreliable.

THE DISPUTED EVIDENCE

On appeal the judge set out the nature of the disputed evidence.

    1. Mr Stevens was employed by DWF Group (“DWF”) as a director and head of organised fraud. His witness statement contained an analysis of claims data collected by DWF in relation to claims submitted by claimants represented by Ersan & Co who acted on behalf of the Claimants in the five above mentioned cases. The parties had been given permission in case management directions to serve further witness statements. There was no direction for expert evidence.
    1. Mr Stevens’ evidence was to summarise the data arising in about 372 cases which showed that:

(i) 95% of claims represented by Ersan contain an allegation of psychological injuries;

(ii) 67% of the claimants were recommended for further psychological examination;

(iii) 68% of the claimants served a psychological or psychiatric report;

(iv) in 100% of the reports provided by Doctor Yahli, he diagnosed a recognised psychiatric condition;

(v) 67% of the 207 reports of Dr Yahli provided a recovery period (with intervention) of two years or longer.

  1. It is suggested on behalf of the Defendants that these figures are striking e.g. an unusually high reference rate for further examination and highly unusual for recovery periods for relatively minor injuries to be was so long. The Claimants submit that the allegation of fraud is irregular and unfair in that there is a failure to make specific allegations against Ersan & Co, and the nature of the allegations made should have led to Ersan & Co being an additional defendant to a conspiracy claim.

 

THE JUDGE’S DECISION ON APPEAL

The claimants were not successful on appeal.    The statements were held to be admissible. It was for the trial judge to assess this evidence and whether it had any cogency.

    1. I first consider the Experts Argument. As regards the expert evidence, on the information which was before the Judge, there is at least a cogent argument that the evidence ought to be the province of an expert and not of a solicitor with the assistance of paralegals in a law firm. It is at least arguable that the evidence is not purely factual, but that there might be statistical assumptions embedded within the information. At this stage, the Court cannot make a definitive conclusion, but it is a real possibility that, without a statistician and/or further information, a Judge might not be able to make findings of the kind which are invited in the second statement of Mr Stevens.
    1. A related question might be as to what weight the evidence has without a comparator. It may be that there would be a surprise about some of the statistical conclusions e.g. how long the recovery would be or the percentage of cases with psychological or psychiatric consequences. The question is what weight to attach to these findings without having further evidence e.g. comparators or some other expert evidence.
    1. There is an assumption, particularly shown in the second statement of Mr Stevens referred to above, that the statistical evidence demonstrates fundamental dishonesty. That assumption may not be made out. It depends on whether a court can infer that the claims were invented or exaggerated because of the large percentage in which small claims came with alleged psychological or psychiatric consequences or because of evidence about the alleged duration of such consequences. Without more, there are real questions as to what can be inferred from such evidence.
    1. Despite these serious reservations, I consider that the evidence of Mr Stevens should not be excluded (beyond the minor excisions of the Judge). First, I do not consider that the evidence is necessarily implied opinion evidence. On the basis of the evidence before the Judge, there was no evidence about embedded assumptions that invalidated (rather than reduced the value of) the evidence. It may be true that there is a risk that there are embedded assumptions in the evidence which could not be recognised. That is not to accept without more the proposition that that is the case or that the evidence is entirely invalidated as opposed to requiring cautious assessment or that its value is reduced rather than negated. Second, the evidence might be used as regards medical witnesses or other professionals to test their method in the context of an assertion that there has been invention or exaggeration of claims. Third and related to the second point, I do not exclude at this stage the possibility that in the context of the evidence as a whole, the analysis will show that there is a method of creating or inflating claims, and that the schedule containing the other cases including the percentages will be a useful tool to that end.
    1. The evidence can be tested at trial as to whether in fact it is on analysis implied opinion evidence and not factual evidence at all. In that event, the Court at trial can decide that it has no weight in that (a) it has not been given by experts, (b) it has not had the transparency which experts are required to bring to their evidence, and (c) as facts by themselves without comparators, it is not determinative of the issues before the Court. That is not a reason to exclude the evidence at this stage, but it may have the effect that at trial, it will be decided that it carries no weight or does not prove the matters which the Defendants say are to be inferred from the same. All that can be said at this stage is that the evidence may be probative at trial. It is sufficiently probative to admit the evidence at this stage, but it will be for the Court at trial ultimately upon the evidence as a whole to consider whether the evidence should be admitted or excluded, and, if admitted, what weight to attach to it.
    1. I now consider the Reliability Argument. This is related. Without more, it may be that the evidence will carry no weight because it was not subjected to the statistical rigour of statisticians or other experts. As the Judge at para. 28 of her judgment stated, the evidence may not ultimately be probative. That is very much a matter for the trial Judge. I agree with her. I have more reservations than she did as to whether the evidence is capable of tending to prove fundamental dishonesty. I entertain doubts as to whether without being in the context of other evidence, the analysis of Mr Stevens could by itself tend to show fundamental dishonesty. However, I conclude that there is sufficient in this evidence of Mr Stevens as may support a case of fundamental dishonesty, whether together with expert evidence (if that is permitted and adduced) or when put to professionals such as lawyers or doctors about the way in which the cases have been assembled. In addition to this, I do not exclude the possibility that the evidence will come to life at trial so that even without more, the trial judge may conclude that the analysis does tend to show fundamental dishonesty. Given this, I agree with the Judge that it would at this stage be “contrary to the overriding objective to shut it out.”
  1. Returning to the subject of similar fact evidence, the Defendants are entitled to seek to run a case of similar fact evidence or evidence akin to this. They do so by seeking to derive patterns from a much larger body of evidence. This tends to show that the evidence is relevant, going to the pleaded case of fundamental dishonesty. It is not at this stage conclusively shown to be relevant, but it is sufficient to justify the evidence being admitted at this stage. Given prima facie relevance, the two stage process required in respect of similar fact evidence can be tested at trial, by which time the evidence of Mr Stevens will be capable of being viewed in the light of the evidence as a whole. At this stage, I am satisfied that there is a real prospect that the evidence will be probative (the first stage). I am also satisfied there are no case management reasons such as overall fairness which should bar the evidence being admitted (the second stage). It will then be for the Judge at trial to assess in the light of the evidence the correct approach to the evidence when seen against the evidence as a whole, and having regard to the two stage consideration applicable in cases of similar fact evidence.