Collaboration is the Key to Fighting Fraud – Not the Wholesale Removal of Legitimate Claimant Rights
As a Scottish practitioner and National Committee Member of MASS, I have, of course, been following with interest the progress of the Government’s proposed whiplash reforms for England and Wales. When the intention to legislate was first announced some time ago, one of the key drivers behind these Government proposals was said to be the further eradication of fraudulent motor accident claims. That is, of course, a legitimate aim and none of the stakeholders in our industry would resist that proposition. From a pursuer or claimant lawyers prospective, I would declare once again that pursuer lawyers have no interest at all in assisting with the progression of fraudulent claims. There has been a lot of talk over the years about industry collaboration and fighting fraud together but, I have to confess that in a Scottish context at least, I see little evidence on a day to day basis of a collaborative approach to stamp out fraud.
Let me give you one recent example of a case my firm were involved with. We were instructed by two claimants in a vehicle which was struck from behind by another vehicle carrying multiple occupants. Claims were intimated for both clients in the normal way and their version of events appeared to be a legitimate one and following proper enquiries, including meeting with both clients separately and in person. Their position was that the occupants in the vehicle behind them were unknown to them both. The identity of the second car occupants (other than the driver who passed his details to our clients at the scene) could not be ascertained as there was no police involvement.
From the outset, the third party insurer – a large player in the UK motor insurance market – indicated they had “concerns” about the validity of these claims but refused point blank to elaborate further despite being pressed on several occasions to do so over the course of many months. We eventually litigated both cases and Scottish solicitors were appointed for the insurers. Even then, despite a number of calls early on in the litigation process for the defenders to disclose any concerns or evidence in relation to the validity of cases, nothing was forthcoming. Once the adjustment period had closed and a hearing for the giving of evidence was fixed, we were then presented for the first time with detailed information concerning the identity of other occupants of the vehicle and further evidence which appeared to show that the parties in both vehicles were indeed all well known to one another. One can’t but help but surmise that in this example, there are no winners. My firm have incurred not insignificant costs in litigating and obtaining medical reports and the like which will never be recouped. We have wasted nearly 18 months of work on the cases. The defender insurers have presumably incurred not dissimilar costs in having to instruct their solicitors to defend the legal action. The potentially fraudulent claimants disappear into the ether and are never heard of again. It’s a sorry tale but a regrettably familiar one in terms of evidencing the complete lack of co-operation and information sharing between parties. One can’t help but feel that earlier cooperation and disclosure between the relevant parties would save a lot of cost and work done on all sides.
In Scotland, practitioners are still not permitted access to the AskCUE information exchange which happens as a matter of course for road traffic claims in England and Wales. I had written to the administrators at AskCUE on a few occasions when the scheme was first rolled out in England and Wales and was told that it was not possible for Scottish practitioners to access the database unless they had an MoJ claims number or a Law Society Practitioner reference. Of course, as Scottish lawyers we have neither. Following recent discussions at a MASS Regional Meeting I have been asked to renew my request to AskCUE.
More generally and as an outsider looking in at the Government’s proposed whiplash reforms in England and Wales, they don’t immediately seem to me to be likely to lead to a further eradication of fraudulent claims and may actually have the opposite effect. Claimant lawyers are an important filter for ridding the system of vexatious or fraudulent claims as there is no benefit in solicitors running with these. A proposed system of reform which will de facto exclude lawyers on cost grounds and opens up the market to CMCs to step in seems to me to be a potential breeding ground for further trouble. A system driven primarily by cost considerations and where, for example, the norm is to proceed without recovery or review of a claimant’s medical records, seems rather bewildering to practitioners here in Scotland.
Hopefully there is still time to get it right in England and Wales (and across the UK) and to find the system which permits the genuine victims of road traffic accidents to recover full and proper compensation but which encourages collaboration between all interested parties at an early stage to ensure that fraudulent cases are weeded out at the earliest possible opportunity.