|Claim No. B36YM790|
|IN THE COUNTY COURT AT MANCHESTER||Form of Judgement oir Order|
|MR SAQUB HANIF Claimant|
|MR FARUK PATEL Defendant|
- 1) On 11th May 2016 William K. Rankin of Oriel Chambers, instructed by DWF LLP represented the Defendant at a trial before HHJ Main QC following which the Claimant’s claim was dismissed with the Judge invoking Section 57 of the Criminal Justice and Courts Act 2015.
- 2). A copy of the Order made by the Court accompanies this Note. The purpose of this Note is to provide context to the decision.
The Claimant’s Case
- 3).The claim arose from a road traffic accident. It was the Claimant’s case that on 9th July 2013 he was driving his Nissan Almera along Stanley Street, Blackburn when the Defendant, in attempting to carry out a U-turn in his Vauxhall Zafira, pulled out from a parked position to the Claimant’s left hand side and collided with the nearside of the Claimant’s vehicle.
- 4). The Defendant was a taxi driver. After the collision, so the Claimant alleged, the Defendant stated he had to collect a fare and that he would return to exchange details with the Claimant. The Claimant was invited to wait in a nearby car park for this purpose. The Defendant then left. The Claimant did not see anyone get into the Defendant’s taxi. The Claimant duly waited in the car park but the Defendant did not return.
- 5). Before leaving for the car park the Claimant alleged he had spoken to and obtained the details of a female, Miss Dawson, who was walking down Stanley Street. A witness questionnaire (not bearing a statement of truth) was exhibited to the Claimant’s witness statement and used at trial in which this purported witness confirmed the accident circumstances given by the Claimant and blamed the Defendant for the collision.
- 6). After the Defendant failed to attend the car park as agreed, the Claimant reported the accident to the police and then put in train enquiries to locate the Defendant. These enquiries involved the Claimant contacting a friend Mr Akhtar (who worked as an insurance broker) who in turn contacted another Mr Akhtar (a taxi driver). Mr Akhtar (taxi driver) located the Defendant, attended his house and obtained an apology from the Defendant. It was asserted the Defendant, fearful of police involvement, apologised and agreed to compensate the Claimant.
- 7). At trial the Court heard evidence from the Claimant and Mr Akhtar (taxi driver) given through an interpreter. Miss Dawson, was not called.
The Defendant’s Case
- 8). The Defendant stated he was proceeding along Stanley Street in order to collect a fare from outside her workplace. This lady was Mrs Porter.
- 9). The Defendant indicated left and began to turn into the entrance to Mrs Porter’s workplace with the intention of performing a U-turn when he was struck on the offside by the Claimant’s overtaking vehicle.
- 10). Both vehicles then stopped. There was a short exchange of words after which the Claimant drove away. The Defendant collected Mrs Porter and took her home. The Defendant did not suggest meeting in a car park. There was no opportunity for the Claimant to have spoken to and the obtained the details of any witness.
- 11). A few days after the accident – when the Defendant had reported the matter to his insurers and to the police – the Defendant was visited by three people one of whom was Mr Akhtar (the broker). During this visit, the Defendant was invited to submit a claim and also to assist in submitting fraudulent claims for alleged passengers. When he refused to make a claim or become involved, he was told that he would be blamed for the accident instead.
- 12). At trial the Defendant gave evidence through an interpreter. Mrs Porter also gave evidence confirming the accident circumstances as alleged by the Defendant. Both the Defendant and Mrs Porter disputed that there was anyone else present at the scene other than the Claimant, the Defendant and Mrs Porter.
- 13). Quantum, subject to causation and liability, was agreed between the parties in the sum of £5700.00 comprising damages for personal injury, vehicle damage and hire.
- 14).In his evidence the Claimant maintained his account and that Miss Dawson was present on Stanley Street. Having initially accepted in cross-examination that there was a woman stood at the side of the road where Mrs Porter was asserted to be, he subsequently changed his evidence on this point. He maintained that it was the Defendant who had driven off from the scene rather than him.
- 15). The Defendant gave evidence and confirmed his version of events. He accepted in cross-examination that at the moments before the collision, he had been looking forward and had not made any additional checks in his mirrors before starting to turn.
- 16). Mrs Porter gave evidence and confirmed her version of events.
- 17) In giving his judgment, the Judge preferred the evidence of the Defendant and Mrs Porter. He found the evidence of the Claimant to be inconsistent. He accepted that Mrs Porter was present and had seen the accident and found that the Claimant had attempted to mislead the Court by submitting a witness questionnaire from Miss Dawson, whom the Judge found was not present. The Judge further accepted that the Defendant had, as he had alleged, been invited to involve himself in submitting fraudulent claims.
- 18). As to liability, the Judge determined that the accident was primarily the Claimant’s fault for attempting to overtake the Defendant when the Defendant was established in the road and indicating but found that the Defendant was 25% to blame for failing to make a check in his mirrors before starting his turn when the Claimant would have been in view.
- 19). In the circumstances, notwithstanding that the accident was a genuine one and responsibility for it shared, the Judge dismissed the entirety of the claim invoking, on oral application by the Defendant, section 57 of the Criminal Justice and Courts Act 2015. The Judge was satisfied that the Claimant’s conduct had amounted to fundamental dishonesty and that it was left as a matter of public policy for his claim to fail.
- 20). Section 57 of the Criminal Justice and Courts Act 2015 applies to claims issued on or after 13th April 2015 and provides as follows:-
57 Personal injury claims: cases of fundamental dishonesty
(1) This section applies where, in proceedings on a claim for damages in respect of personal injury ("the primary claim")--
(a) the court finds that the claimant is entitled to damages in respect of the claim, but
(b) on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.
(2) The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.
(3) The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.
(4) The court's order dismissing the claim must record the amount of damages that the court would have awarded to the claimant in respect of the primary claim but for the dismissal of the claim.
(5) When assessing costs in the proceedings, a court which dismisses a claim under this section must deduct the amount recorded in accordance with subsection (4) from the amount which it would otherwise order the claimant to pay in respect of costs incurred by the defendant.
(6) If a claim is dismissed under this section, subsection (7) applies to--
(a) any subsequent criminal proceedings against the claimant in respect of the fundamental dishonesty mentioned in subsection (1)(b), and
(b) any subsequent proceedings for contempt of court against the claimant in respect of that dishonesty.
(7) If the court in those proceedings finds the claimant guilty of an offence or of contempt of court, it must have regard to the dismissal of the primary claim under this section when sentencing the claimant or otherwise disposing of the proceedings.
(8) In this section--
"claim" includes a counter-claim and, accordingly, "claimant" includes a counter-claimant and "defendant" includes a defendant to a counter-claim;
"personal injury" includes any disease and any other impairment of a person's physical or mental condition;
"related claim" means a claim for damages in respect of personal injury which is made--
(a) in connection with the same incident or series of incidents in connection with which the primary claim is made, and
(b) by a person other than the person who made the primary claim.
(9) This section does not apply to proceedings started by the issue of a claim form before the day on which this section comes into force.
- 21). Whilst providing the Courts with a remedy to the phantom passenger situation such as considered in Ul-Haq, it can be seen that it also has application in situations such as this where a genuine accident has occurred liability for which is shared but the Claimant has been dishonest in the way he has presented his claim.
- 22). The recital at the start of the order should be noted in which the Court set out the basis for its decision. Attention is also drawn to the fact that the Claimant is entitled in relation to costs to offset the amount of damages he would have recovered but for his fundamental dishonesty pursuant to section 57(4) – namely £1425 being 25% of £5700 .