Horwich Farrelly and Aviva secure key fundamental dishonesty ruling

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Law Horwich Farrelly and insurer Aviva have a won a ruling that could strengthen Section 57 as a fraud deterrent.

Central London County Court Judge Saunders ruled earlier this month in Basir v Larizadeh that Section 57 applies to the whole of a claim and any damages claimed during proceedings, whether related to the injury or not, can be dismissed on a finding of fundamental dishonesty.

The case initially went to trial in May 2018 when, following a motor accident, the claimant, Basir, presented claims for personal injury and special damages for vehicle damage and credit hire.

Despite the judge ruling that Basir’s claims for personal injury were “wholly unbelievable in relation to injuries” and therefore fundamentally dishonest, he was still awarded £1,824 for the credit hire claim, as well as costs.

Horwich Farrelly urged the judge to dismiss the entire claim under Section 57, but the judge interpreted the word ‘claim’ in the legislation as referring to the claim for injury only and, as that was dismissed, ruled that there was no award of damages for the purpose of the act.

The law firm appealed against this decision on behalf of Aviva on the basis that the law on Section 57 had been misapplied.

Finding that the trial judge had been wrong in his interpretation of Section 57 and had misinterpreted the legislation by awarding the claimant damages (and, therefore, costs) for the credit hire claim, Judge Saunders allowed the appeal and dismissed the whole claim.

He commented that the decision of the lower court would give “perverse results where a claimant who had completely fabricated their claim for personal injuries would be in a better position in claiming for vehicle damages than a claimant who had merely exaggerated their injuries”.

Aviva was awarded the costs of defending the original proceedings and the costs of bringing the appeal on the indemnity basis. They totalled more than £19,000 and are enforceable directly against the claimant.

Howard Grand, director of legal general insurance at Aviva, said of the appeal: “We are pleased with the appeal judge’s finding in this important case. We must not return to the ‘bad old days’ where honest motorists were, in effect, forced to subsidise the actions of fraudsters through inflated premiums.”

Jared Mallinson, partner at Horwich Farrell, added: “We are extremely happy that we persevered with this case and it resulted in a successful appeal. Poorly drafted and at times confusing, Section 57 is open to some interpretation.  It is crucial that the courts apply the ruling correctly to avoid cases where claimants can be found to be fundamentally dishonest yet still be awarded damages.”

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Mark Dugdale is the editor of Claims Media. Mark welcomes articles, letters or feedback from readers and can be reached via mark.dugdale@barkerbrooks.co.uk