In Khan -v- Aviva Insurance Ltd (15/11/2022) District Judge Lumb made a clear finding of fundamental dishonesty on the part of a personal injury claimant. That finding was confirmed, or perhaps compounded, by the judge’s views in relation to the conduct of the solicitors and the agency involved.
A copy of the judgment is available here. Khan v Aviva Khan v Aviva F39YM784 judgment as handed down (5)
“The Claimant having been involved in a road traffic accident that was not her fault took a chance on bringing an opportunistic claim for damages. It may be that her initial dishonesty was only in relation to whether she was injured or not and the extent of those injuries but she then found herself caught up in a business model that was being operated by others that she could not escape from and had to play her part in seeking to cover up the activities of others”
THE CASE
The claimant’s case was that she was injured in a road traffic accident when her car was struck from behind. She instructed a firm of solicitors and an agency was instructed which obtained two medical reports. The defendant’s case was that the claimant was fundamentally dishonest in asserting that she had been injured. Further the medical reports produced were more or less identical to reports in other cases. It was the defendant’s case that there was collusion of some kind between the claimant’s solicitors and the agency. They were each run directors who brothers and they operated out of the same building.
The claimant’s case was that she had contacted the agency of her own accord.
SIMILAR FACT EVIDENCE OF IDENTICAL CLAIMS
The defendant adduced evidence of similar claims being made.
The evidence before me comprised a two-volume lever arch file bundle amounting to
some 838 pages. In addition to the usual pleadings, witness statements, lists of
documents, court orders, medical evidence and photographs of damage to vehicles the
bundle included copies of the Claim Notification Forms and supporting documents for
claims brought on behalf of the Claimants four children for whom the Claimant was the
proposed Litigation Friend. These claims although brought through the portal and
denied by the Defendants have not yet been the subject of proceedings nor included
within these proceedings. These documents were exhibited to the witness statements of
Mr Bethell as were other suitably redacted Claim Notification Forms in relation to other
accidents where Simply Legal were acting as solicitors and had instructed Mr Majid
and Dr Mir involving Med-Room Solutions Limited (MRSL) and identical
physiotherapy and CBT programmes . These documents, not directly connected to Mrs
Khan’s claim, were said to be relevant as similar fact evidence demonstrating a business
model of deliberately layering claims for the cost of unnecessary or non-existent
rehabilitation treatment for financial gain.
THE DEFENDANT SHOULD PRODUCE EVIDENCE IF IT WANTS TO ALLEGE THAT AN ACCIDENT COULD NOT HAVE CAUSED INJURY
The judge did not accept the defendant’s case that it was no longer necessary to call evidence to establish that the accident circumstances in themselves could not have caused injury.
If a Defendant wishes to allege that an impact was of such low velocity as to be unlikely
to cause injury there is a clear protocol requirement following the case of Casey v
Cartwright to plead this in the Defence and to request permission for the Defendant to
rely upon its own medical and expert engineering evidence. The Defendants did not do
this in the present case. Mr André submitted that in the modern post-Jackson era such
an approach was disproportionate and the court should be left to simply deciding
whether it believed the Claimant’s account or not.
21. I accept the submissions made by Mr Mohammed Bashir, counsel for the Claimant, that
without the benefit of expert evidence it would be dangerous for the court to seek to
draw any conclusions as to how the parties vehicles reacted when struck by each other
or what speed the Defendant’s vehicle was travelling at. The only conclusion that the
court can draw is that an impact such as described by the Claimant is sufficient to cause
some personal injury and from the courts experience in previous cases and I make that
finding accordingly.
THE ABSENCE OF MEDICAL EVIDENCE FROM THE DEFENDANT
However the fact that the defendant called no evidence was not definitive. The claimant’s evidence, in itself, was highly unsatisfactory.
As Mr Bashir points out, the Defendant has adduced no medical evidence themselves
to be contrasted with the evidence relied upon by the Claimant. The assessment of her
credibility as to whether she was injured and to what extent therefore depends upon the
court’s assessment of the Claimant’s own evidence both in her written witness
statements and oral evidence as well as the histories which she provided to the Accident
and Emergency department of the hospital that she visited the day after she instructed
her solicitors, her GP, the medical experts and the treating clinicians provided by Mr
Qadeer Raja’s company, MRSL.
24. I have already referred to the meticulous nature of the cross examination of the Claimant
by Mr André which I find was conducted in a way that was entirely fair to the Claimant,
not seeking to trip her up or put words into her mouth. I am sorry to say that I found the
Claimant to be a quite unconvincing witness. The various accounts of her alleged
injuries, the time of onset of each and the duration of her symptoms were wildly
inconsistent which could only lead to one of two conclusions either that she had failed
to come up to proof, that is that she had failed to satisfy the burden of proof that was
upon her to establish that she was in fact injured in the accident and the extent and
duration of those injuries or that the account that she had given was a dishonest one.
25. There were multiple examples of significant inconsistencies….
THE FINDING OF FUNDAMENTAL DISHONESTY
The judge made a clear finding of fundamental dishonesty.
“Was the claim fundamentally dishonest?
28. However, that is not the end of the case as the Court has to consider the remainder of
the evidence adduced at trial to determine whether the Claimant’s evidence was simply
insufficient to prove her claim or whether the Claimant herself and her claim were
dishonest and if found to be dishonest whether that dishonesty went to the root of the
claim such as to justify a finding of fundamental dishonesty.
29. I do not accept as likely that the Claimant was the one who initiated contact with MRSL
without any referral directly or indirectly through her solicitors, Simply Legal. At the
time of completion of the CNF that form stated that the Claimant had been
recommended to undergo rehabilitation treatment by a medical practitioner. She had
not. At that time she had only seen the A & E Department at Wexham Park Hospital
who had not recommended this.
30. MRSL were the agency who arranged the instruction of Mr Majid and arranged the
physiotherapy treatment assessment. Her explanation that MRSL were recommended
by a family member, but she cannot remember exactly who, is implausible when her
telephone records that she was ordered to disclose shown no outgoing calls to MRSL.
It is also implausible that she instructed MRSL directly on 15 May 2019 after she had
instructed Simply Legal but over a month before Mr Majid examined her and produced
his report. While giving evidence over the CVP link it was noticeable that the Claimant
appeared to be referring to something written down in front of her. She was asked to
show what this was and held it up to the screen. It was a crib sheet with important dates
in the timeline of her story including that it was on the 15 May 2019 that she had first
telephoned MRSL. This on its own is highly suspicious and indicative of an aide
memoire to assist in giving false and dishonest evidence.
31. Given that the directors of her solicitors and of MRSL are brothers operating their
businesses from the same building it is stretching credulity beyond breaking point to
suggest that Simply Legal were not involved in the referral. It is also beyond credible
that the Claimant took it upon herself to contact Time Reflection Therapy Limited to
arrange for her CBT treatment assessment and subsequent treatment after receipt of Dr
Mir’s report when she already had by that time an established relationship with MRSL
who she would have expected to have arranged treatment for her as they had done for
the physiotherapy.
32. This assertion that the Claimant made these approaches herself only arose upon the
service of a Reply to the Defence on 16 December 2020 and after the Claimant been
ordered to disclose her telephone records between 19 April 2019 and 18 October 2019.
Those assertions had to be made to fit the known chronology and in response to the
witness evidence of Mr Bethell served by the Defendants in support of the contents of
the Defence. They amounted to a clumsy attempt to distance the solicitors and medical
agency from what was more likely than not to be a cosy arrangement in the management
of personal injury claims.
33. Mr Bashir submits that there is nothing unusual in firms of solicitors providing regular
instruction to medical agencies and particular medical experts. That is true but does not
explain the situation that has arisen in this case when the full context is examined.
34. The evidence of Mr Bethell is powerful in demonstrating that cases where Simply Legal
were the solicitors, the same pattern of referral to MRSL then to Mr Adnan Majid whose
recommendation for the same amount of physiotherapy in every case, a suggestion of
travel anxiety which he described as being beyond his area of expertise and the need
for psychological evidence occurred again and again in every case such as to raise at
least a suspicion that these reports have been produced on a formulaic basis and not
tailored to the individual facts of the individual cases. That several of these cases
involved the Claimant as the proposed Litigation Friend of her children who were
passengers in her car at the time of the accident only adds to the doubts over the veracity
of these claims and the reliability of the medical reports produced in support.
35. This is compounded by the contents of the reports of Dr Faisal Mir in every case stating
that a finding of travel anxiety was well within the scope of expertise of Mr Majid as it
is not a recognised psychiatric diagnosis but nonetheless recommending CBT
treatment. The repeated recommendation by Mr Majid of the need for a psychological
report when one was repeatedly concluded by the Psychologist to be unnecessary is a
cause for concern.
36. In my judgment, this is clear evidence of the layering of this claim and others as alleged
by the Defendants.
37. I am conscious of the fact that Mr Majid was not called to give oral evidence and
therefore was not available for cross examination to explain himself. I cannot really
therefore conclude anything more than a high degree of suspicion with regard to the
quality of his reports and how much reliance can be placed upon them. I can only
comment that this might be something that the regulatory body, the General Medical
Council, might investigate if they felt there were grounds to do so. The same applies,
albeit to perhaps a lesser extent, to the reports of Dr Mir. The practice of providing
physiotherapy treatments over the telephone has been expressly frowned upon by the
physiotherapists governing body in unrelated disciplinary proceedings but they too may
consider that there are grounds for an investigation into the treating physiotherapist in
this case. It also follows that the Solicitors Regulation Authority may also wish to
investigate the handling of claims by Simply Legal.
The evidence of Qadeer Raja
38. Turning to the evidence of Mr Qadeer Raja, I am afraid that I have been driven to the
conclusion that he was a very unsatisfactory witness and that parts of his evidence were
demonstrably untrue. His attempts to distance himself from the CBT treatment provider
Time Reflection Therapy Limited were clumsy. The Claimant signed purported
agreements with MRSL and Time Reflection Therapy Limited to postpone the time for
payment of treatment fees. These purported agreements were in identical format,
typeface and layout and Mr Raja’s purported explanation that they were simply
templates taken from the Internet was not credible.
39. It was argued by Mr André on behalf the Defendant that these purported agreements
were in breach of the Consumer Credit Act 1974 and unenforceable. Given that I have
found that the Claimant’s claim fails in any event I do not need to determine that point,
suffice to say that it was obvious that Mr Raja had no understanding of the requirements
of the Consumer Credit Act 1974 or accompanying Regulations at all.
40. Mr Qadeer Raja’s evidence that the Claimant contacted his firm directly to arrange
physiotherapy did not stand up to scrutiny. The Claimants own phone records didn’t
support this as there was no record of a call out to MRSL. Mr Raja tried to claim that
his company would have had logged all calls made and received but when challenged
to produce those logs and explain why they had not been disclosed he admitted that
there was no log.
41. Mr Qadeer Raja also sought to try and distance himself from any links with the
Claimant solicitors Simply Legal (of whom his brother was a director) and with whom
they share the same business building. This was such an implausible position to take
that it was inevitable that it would simply add strength to the suspicion of a collusion
from start to finish involving the Claimant herself, her solicitors, Simply Legal, MRSL
and the medical experts Mr Majid and Dr Mir. It is clear that Mr Raja and his company
stood to gain financially from the instruction of the medical experts and the provision
of the treatment for any physiotherapy and CBT.
42. The involvement of the Claimant in this collusion provides further weight above and
beyond the indication raised earlier in this judgment that her claim was fundamentally
dishonest. I do not accept the submissions of Mr Bashir that there is a lack of evidence
that links the Claimant directly to any dishonest collusion between others. The careful
cross examination by Mr André of both the Claimant and Mr Raja unpicked the threads
and when all these threads were laid side by side and viewed as a whole the complete
picture became visible and the conclusion that this was a fundamentally dishonest claim
was inevitable.
Conclusion
43. The Claimant having been involved in a road traffic accident that was not her fault took
a chance on bringing an opportunistic claim for damages. It may be that her initial
dishonesty was only in relation to whether she was injured or not and the extent of those
injuries but she then found herself caught up in a business model that was being
operated by others that she could not escape from and had to play her part in seeking to
cover up the activities of others. The signing of the credit agreements to postpone
payment of the treatment fees and the use of a crib sheet to make sure that she told the
correct story during her oral evidence are good examples of her involvement in a
collusion as is the implausible suggestion that she instructed the treatment providers
herself when she had solicitors acting for her who were closely connected with MRSL.
44. If there had been any doubt that her claim was fundamentally dishonest, her collusion
with the solicitors and medical agency confirms that this was indeed a fundamentally
dishonest claim. Applying the test in Ivey v Genting Casinos [2017] UKSC 67 the
Claimant could not have held a subjective view that her claim was honest let alone that
it could have been viewed as being honest by an objective bystander. The claim that
she was injured in this accident and her involvement with MRSL in particular went to
the very heart of the claim and therefore must be regarded as fundamental to it.
45. The Claimant’s claim is dismissed and is found to have been fundamentally dishonest
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