Is there fraud in liability claims?

Footballer jailed after team photo reveals lie over injuryThe Daily Telegraph / 7th December 2005

A footballer who hurt his knee in a tackle then claimed he had tripped on a faulty pavement was jailed for 14 days yesterday for contempt of court.

Matthew Hughes, 26, of Pontlottyn, Caerphilly, South Wales, also faces a legal bill of £32,000 in what is thought to be the first case of its kind.

Two friends who supported his fraudulent compensation claim against Caerphilly council - Christian Rowlands, 34, and Jamie Verity, 26 - were each fined £1,500 for contempt. All three were found to have made false "statements of truth" - the modern equivalent of affidavits - in proceedings against the council.

Mr Justice Silber gave a warning that people who made false witness statements to bring fraudulent claims could in future expect "substantially longer" sentences than he imposed on Hughes.

Agenda for change

Governments Response to Fraud- Fraud Act- Fraud Review - National Strategic Fraud Authority (Reporting Centre)- Compensation Act

Insurance Industry Response- Insurance Fraud Bureau- ABI Anti Fraud Committee- ABI publication of value of detected claims (July 2007)

* 2004 – uncovered £200m

Fraud & The Fraud Act

Historically a range of criminal offences at common law and statute (Theft Acts 1968 –1996). No translation to civil law and closest principles were Fraudulent Misrepresentation & Tort of Deceit

Simplified since the introduction of the Fraud Act 2006Fraud Act 2006 (effective 15th January 2007) Now comprises: - Fraud by false representation (section 2) - Fraud by failing to disclose information (section 3) - Fraud by abusing a position of trust (section 4)

Summary conviction: fine £5000 – 12 months imprisonment On Indictment : Fine Unlimited – 10 years imprisonment

DEFENCE: To plead or not to plead

The evidential burden: The reversed burden of proof

Standard of proof: Shifting between the civil and criminal The more serious the allegation the higher the standard Hornal v Hornal v Neuberger Products Ltd 1957Neuberger Products Ltd 1957

Severe consequences for unsubstantiated allegations Cooper v P & O Stena Line Ltd 1999Cooper v P & O Stena Line Ltd 1999

Professional Obligations : Codes of Conduct Medcalf v Mardell AC 2003 Medcalf v Mardell AC 2003

CPR Rules : Part 16 and ‘Queens Bench Guide‘

Challenges

Pre Action Protocol

Current Position – Documentary evidence/timescales

Proposed Reforms Increase in fast track limit Strict time limits for admissions - 15 & 30 days

Investigation Overview

Desktops

Documentation

Field Investigations

Expert Investigations/Instructions

Miscellaneous Investigations

Surveillance

CASE

EVIDENCE

Investigative Tools - Legal Disclosure – CPR 31

A: Pre-Action Disclosure B: Standard Disclosure C: Specific and Non-Party Disclosure

CPR 18 and 35

ID Evidence/Proof of Residency - POCA

Witness Statements/Evidence Courts power to control evidence – CPR 32

- Importance of getting it right

- Late service

What evidence should be served and when

Witness summaries – tactical use of

False statements and contempt of court proceedings

Intelligence Tools Human Sources

Open Sources

Access Restricted Sources

Organisations Law Society/Bar Council Claims Management Regulation and Monitoring and Compliance Unit – Ministry of Justice Security Industries Authority

Expert Evidence

Types of evidence- Forensic Engineers- Accident reconstruction experts- Handwriting experts- Medical experts- Forensic accountancy- Mobile phone forensic experts- CCTV analysis- Computer forensic experts – data recovery/mining

Correct Procedure - when and how to disclose- permission of the court

Obtaining evidence – admissibility

R v Khan (Sultan) (1997)

Jones v University of Warwick (2003)

Morrison v Avecot Hardware Plc (2003)

Painting v Oxford University (2005)

Conduct Rules

Question time…..