Fraud in personal injury claims

The perception of fraud in personal injury claims is an issue that affects both insurance companies and individuals seeking legitimate compensation. This form of fraud most often involves individuals attempting to deceive insurance companies by fabricating the circumstances of an accident or exaggerating the extent of the injury they have suffered.

If you are often reading about the goings on in the field of Scottish personal injury law, the impression is that fraudulent claims are on the rise. But is that really the case? Certainly, it would seem so but what we don’t hear so much about is the high number of successful cases where solicitors work diligently to recover the compensation due to their clients because of someone else’s negligence.

Fraudulent claims not only result in financial loss for insurance companies, they also impact the validity of legitimate claims and the reputation of the solicitors pursuing claims on behalf of pursuer’s who have genuinely been injured as a result of negligence.

There has been a steady stream of judgments considering the meaning of “fraudulent representation”, “manifestly unreasonable behaviour” and “abuse of process” following the introduction of the Civil Litigation (Expenses and Group Proceedings (Scotland) Act 2018. The judgments have clarified on a case-by-case basis, when qualified one-way cost shifting (QOCS) protection will be disapplied. What is clear is that the conduct of pursuer, and/or their solicitor is usually at the heart of successful motions.  We covered recent developments in QOCS in a recent blog. 

The Scottish Court has been careful to point out that the preference of one argument over another is not in itself an indication of fraud. In Gilchrist v Chief Constable Police Service of Scotland and in Murray v Myktyn, both pursuers lost their respective cases but motions for the disapplication of QOCS protection were not allowed. In both cases, the court preferred the defender’s evidence over the pursuer’s. Discussions in both cases considered the difference between a straight lie and forgetfulness or memories of accident circumstances being unclear. Forgetfulness was not enough to establish “fraudulent representation”, “manifestly unreasonable behaviour” or “abuse of process”.

The role of the solicitor

So, what steps are solicitors taking to stamp out exaggerated or made-up claims?

We work closely with our clients on behalf of pursuers and play a vital role in gathering and analysing evidence. They always have done. The pursuer has three elements to prove to succeed with their claim: liability, causation and quantum. Solicitors acting for pursuers work closely with pursuers to understand the circumstances of how an accident occurred and build a strong case. Often this involves lengthy meetings and conversations with the pursuer to discuss the circumstances of the accident. The solicitors who work in Harper Macleod’s specialist personal injury team are well-versed in identifying red flags, such as inconsistencies in the claimant’s account of the accident circumstances, excessive or unrealistic injury claims or a history of making similar claims.

From the very start of the investigation, we will be assessing our client’s credibility and reliability. However likely or unlikely the accident circumstances appear to be, is the pursuer’s account consistent? Is the evidence of any witness consistent with the pursuer’s account? The importance of assessing the credibility and reliability of witnesses was outlined recently in the case of Hill v Angus Council which we wrote about in our last briefing.

Whilst liability investigations are ongoing, we will also be ingathering and meticulously reviewing any relevant medical records to confirm that the injury complained of was actually reported and the description of the injury that was given to medical professionals.

The expertise and investigative skills of solicitors acting on behalf of pursuers cannot be understated. Their dedication to upholding the integrity of their profession ensures that legitimate pursuers receive the compensation they rightfully deserve and fraudsters are deterred from exploiting the system.

Personal injury claim fraud is an issue which will continue to be under close scrutiny. It is important for pursuers and defenders alike to safeguard themselves against allegations of fraud and one of the best ways to do this is to ensure that evidence is ingathered at the earliest opportunity, at the scene of the accident if possible; take pictures of the damage, get contact details for witnesses and seek medical treatment for injuries suffered as soon as possible.

Be cautious of individuals who approach you offering their services after an accident. They may be trying to exploit your situation for their own gain. Instead, consult with trusted legal professionals who can guide you through the claims process. Our specialist team of personal injury solicitors are available to discuss potential claims and offer accurate advice on prospects of success.