horwich farrelly

DJ unable to spin his way out of Fundamental Dishonesty ruling after exaggerating ten month injury

July, 10, 2018

Horwich Farrelly has further underlined its focus on tackling fraud by securing a ruling of Fundamental Dishonesty under Section 57 of the Criminal Justice & Courts Act 2015 in a successful appeal case.

Working on behalf of LV=, the appeal saw the claimant, Mr Robert Fithon, a mortgage advisor with a part-time career in dance music, stripped of his original damages and ordered to pay legal costs.

DJ spinning decks

Following a minor motor collision in September 2016 in Manchester, Mr Fithon claimed that his vehicle was hit with such a ‘heavy and violent impact’ – which felt like ‘a small bomb going off’ – that the muscles and tendons of his shoulder were ‘crushed’. The injury was so severe he claimed, that it took 10 months to heal correctly.

On investigating the case on behalf of LV=, however, Horwich Farrelly found that, in reality, Mr Fithon had been discharged from physiotherapy just five weeks after the accident. Indeed, he had undergone only two sessions, with a 100% recovery.

He had also claimed he was unable to attend his gym for three months due to his injuries. However, the physiotherapy discharge report showed that, five weeks after the accident, he was able to ‘do all gym exercises pain free when using good technique’ and that he could ‘perform all gym activities to his pre-accident levels of ability’.

When the case went to trial at Manchester County Court in December 2017, the judge found that Mr Fithon had greatly exaggerated his claim, prompting him to disregard the evidence in its entirety. However, the judge also found he had no option other than to award damages on the basis of the physiotherapy discharge report. He therefore awarded Mr Fithon £1,869.83.

With a clear mission of zero tolerance on fraudulent claims, Horwich Farrelly and LV= believed this outcome was unacceptable and that the judge had not properly applied s57 of the Criminal Justice and Courts Act 2015. The original decision was therefore appealed, with Horwich Farrelly arguing before Justice Andrews at the High Court Appeal Centre in Manchester that Mr Fithon had acted dishonestly in the presentation of his claim and that it should be dismissed.

Examining the evidence from the original trial, Justice Andrews agreed. He allowed the appeal and dismissed Mr Fithon’s claim on the basis that it was fundamentally dishonest pursuant to section 57 of the Criminal Justice and Courts Act 2015.

Martin Milliner, GI Claims Director at LV=, welcomed the result, saying: “Insurers are often wrongly criticised for not defending enough spurious whiplash claims. The original court decision highlights just how hard it is for us to win even when the facts speak for themselves. Taking whiplash claims to the High Court on Appeal is a disproportionately expensive way to underline the point that for insurers to defend more cases to trial we need more backing, support and certainty of outcome from the judicial process, especially at first instance.”

Ronan McCann, Counter Fraud Partner at Horwich Farrelly, believes this case sends a very strong message to anyone considering exaggerating a claim. He said: “This is a fantastic result for LV= as it further strengthens the message that insurance fraud will not be tolerated. Having considered all the evidence, we believed the first judge had made the wrong decision and hadn’t properly applied the law and this was why we appealed the ruling. We hope this successful outcome will encourage the industry to tackle more fraudulent claims and will help ensure both consumers and insurers benefit from the costs saved on unmerited claims.”

This is the ninth such finding under S57 made by Horwich Farrelly since securing their first in April 2016.

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