Philip Nicholas secures discontinuance and recovery of costs for Esure against litigant in person

Background/facts

On 10 February 2019 a road traffic collision occurred between a vehicle driven by the claimant, Maxine Daly, and Mr Hardeep Ryatt insured by Esure. The claimant claimed she suffered soft tissue injuries, including whiplash, and psychiatric injury. She was then involved in a subsequent road traffic accident 4 months later on 2 June 2019, in which she sustained more serious injuries including a spinal fracture.

The claimant presented separate actions in relation to the two claims. She was represented by Irwin Mitchell in respect of both. Liability was admitted in relation to both accidents, with causation and quantum in dispute. She compromised her claim in respect of the second accident in May 2022 for £300,000, but continued her claim for damages in respect of the first accident. 

Procedure and investigations

The matter proceeded to a CCMC in October 2022.  Standard multi-track directions were given, including permission for the parties to obtain multidisciplinary medico-legal evidence (orthopaedic, psychiatric, spinal, pain management). We obtained standard quantum disclosure, including full medical records and DWP records. The claimant’s stated level of disability was very high, and seemingly disproportionate to the injuries sustained. 

As a result of concerns, we undertook significant background investigations. These included social media, CACHE PI, open internet source searches, and surveillance. The totality of evidence obtained significantly undermined the claimant’s credibility and challenged her stated levels of disability.

The claimant was presented with the evidence in September 2023, together with an accompanying application to rely on this additional evidence, further directions including vacating the trial listed in February 2024, and to amend our defence to plead fundamental dishonesty.  As a result, Irwin Mitchell issued an application to come off record before our application was heard in December 2023.

The court granted permission to rely on our additional evidence - which included a thorough and comprehensive witness statement from Toby Morse, Intelligence Manager, and featured detailed research carried out by Paul Holmes, Senior Intelligence Handler.

The Court provided amended directions, which included permission for the claimant to serve a Reply to our amended defence, and permission to send the additional evidence to all experts for comment in advance of joint statements. The matter was ultimately relisted for trial in the week 3-7 March 2025.

Discontinuance, fundamental dishonesty, tactics and comment

The claimant was acting as a litigant in person at the time of our application hearing in December 2023. Interestingly, she was represented by a direct access barrister, who did not object to our amended defence pleading fundamental dishonesty or relying on the additional evidence.  

In her Reply to the amended Defence, she denied that our additional evidence contradicted what she had told the medical experts or stated in her witness statement. This may have proved a difficult position to maintain. In particular, the claimant and her husband (a Pastor at a local church) had stated in their witness statements that the claimant’s symptoms had deteriorated by May 2019 to the extent that she was effectively housebound and required eight hours of care a day. Whereas social media searches revealed that in May 2019 the family travelled to the USA to attend a doctorate graduation ceremony, followed by a holiday in Portugal. Also, the claimant stated that she was largely housebound after June 2019 and could not drive – which was contradicted by the surveillance and social media searches. 

The claimant managed to secure alternative legal representation from March to June 2024, after which time she remained unrepresented. She failed to comply with court directions to serve an addendum witness statement, instruct her medical experts to prepare joint statements. Most notably, she opted not to send them the additional evidence in contravention of the court directions. At that stage, because she was acting as a litigant in person, it was critical to ensure that all correspondence with her was couched in the most neutral manner possible. We were also sure to provide assistance with the court procedure (which included providing her with a copy of the Pre-trial checklist document, approaching the court to confirm the date for the claimant’s payment of the trial fee etc) to avoid any potential criticism from the court at trial, or prospect that the trial date may be lost due to procedural issues.

Ultimately, in the lead up to trial, the claimant invited us to re-open an offer (originally made in December 2023) to allow her to discontinue her claim and pay costs capped at £50,000. This represented a very pleasing outcome and avoided potential uncertainty at trial involving a difficult litigant in person. The power of early, comprehensive and diligent scrutiny of records in conjunction with appropriate social media searches and decent surveillance evidence ultimately made the difference in this case. Whether the Court would have found the claimant to have been fundamentally dishonest is something that will never be known, although a claimant discontinuing on the eve of trial and paying a substantial sum towards the defendant’s costs perhaps tells its own story.

Weightmans instructed Zoe Earnshaw of Deans Court Chambers.  Weightmans were instructed by Michelle Smith of Esure Insurance.