Skip to main content
  • Select a Site Blog
    US-Global
    Canada en fr
    United Kingdom
    Australia

    By Country / Region

    • Argentina en es pt
    • Australia
    • Belgium
    • Brazil en pt es
    • Canada en fr
    • The Caribbean
    • Chile en es pt
    • China
    • Denmark
    • Finland
    • Germany en de

     

    • Hong Kong
    • India
    • Indonesia
    • Italy en it
    • Japan
    • Malaysia
    • Mexico en es pt
    • Netherlands en nl
    • Norway en no
    • Panama en es pt
    • Peru en es pt

     

    • The Philippines
    • Poland en pl
    • Singapore
    • Spain en es
    • Sweden en sv
    • Taiwan
    • Thailand
    • United Arab Emirates
    • United Kingdom
    • United States

    By Country / Region

    • Argentina en es pt
    • Australia
    • Belgium
    • Brazil en pt es
    • Canada en fr
    • The Caribbean
    • Chile en es pt
    • China
    • Denmark
    • Finland
    • Germany en de
    • Hong Kong
    • India
    • Indonesia
    • Italy en it
    • Japan

     

    • Malaysia
    • Mexico en es pt
    • Netherlands en nl
    • Norway en no
    • Panama en es pt
    • Peru en es pt
    • The Philippines
    • Poland en pl
    • Singapore
    • Spain en es
    • Sweden en sv
    • Taiwan
    • Thailand
    • United Arab Emirates
    • United Kingdom
    • United States

    Specialty Sites

    • Broadspire
    • Catastrophe Services
    • Contractor Connection
    • Crawford Blog
    • Crawford GTS
    • Crawford Legal Services
    • Investor Relations
    • WeGoLook
  • Investors
  • Careers
  • Blog
  • Subscribe
  • Login
    • CMS Portal
    • CAT Adjuster Portal
    • VTECH
    • XactAnalysis
  • Submit a Claim
    • US Claim Submission Portal
    • Text "Claim" to 877-531-4803
  • 24/7 Hotlines
    • ClaimsAlert Hotline
    • 877-346-0300
    • Transportation Claims Hotline
    • 866-420-1689
    • Submit a Claim
    • US Claim Submission Portal
    • Text "Claim" to 877-531-4803
Crawford & Company logo
  • Services
    • Loss Adjusting
    • Third Party Administration
    • Managed Repair
    • Medical Management
    • On-Demand Services
    • Catastrophe Response
    Global Loss Adjusting Preview Cards 480X270

    When loss occurs, Crawford is there with the right team, the right technology, and the right processes to help you restore and rebuild.

    Global Third Party Administration Preview Cards 480X270

    From loss adjusting to medical management to managed repair and more, Crawford delivers effective TPA solutions to save you time and money.

    Global Managed Repair Preview Cards 480X270

    Deliver a world-class experience to your customers from first notice of loss all the way through to finished repair.

    Global Medical Management Preview Cards 480X270

    A comprehensive set of clinical management programs focused on compassionate care.

    Global Wegolook Preview Cards 480X270

    Bringing the gig economy to the enterprise to deliver faster, more cost-effective results.

    Global Catastrophe Services V1 Preview Cards 480X270

    Industry-leading adjusters combined with innovations in technology and workforce management deliver value to clients when they need it most.

    Service Catalog

    Get details on all of Crawford's services in our easy-to-navigate online catalog.

    Explore our services

  • Industries

    Insurance & Risk

    • Carriers
    • Brokers
    • Corporates
    • The Lloyd's Market

    Other Industries

    • Agriculture
    • Construction
    • Entertainment and Events
    • Finance
    • Healthcare
    • Hospitality
    • Manufacturing
    • Marine
    • Mining
    • Power and Energy
    • Public Sector
    • Real Estate
    • Retail and Wholesale
    • Transportation
    Global Insurance Carriers Previewcard

    Optimize your claims processes and delight your customers.

    Global Insurance Brokers Previewcard

    Backed by our innovative array of services, you’ll always be the hero to your clients.

    Global Corporates Previewcard

    Comprehensive solutions for businesses in any industry.

    Global Preview Card Lloyds 480X270

    Exceeding expectations for syndicates, brokers, insureds, coverholders, and MGAs.

    Uk Agriculture Preview 480X270

    Understanding the ever-changing risks of the modern rural economy.

    Global Construction Previewcard

    Specialized expertise for those who build.

    Camera man filming a scene in a doctor's office

    Navigating the complex landscape of production risk.

    Aerial view of city

    Supporting the unique and ever-changing risks of financial institutions.

    Group of healthcare professionals meeting

    Delivering on our mission so you can focus on yours.

    Global Hospitality Preview Cards 480X270

    Driving efficiency, building customer satisfaction and protecting your brand.

    Batteries on a conveyor built in a manufacturing facility

    Keeping the engine of commerce running.

    Uk Marine Transportaion Preview 480X270

    Expert service in a complex, large-scale and high-profile sector.

    Mining equipment outdoors

    Global expertise for large-scale operations.

    Solar and wind farm

    Knowledge, skills and experience in energy, power generation, and renewables.

    Ornate columns outside a government building

    Innovation and data-driven efficiencies deliver value for public entities.

    Global industry real estate preview

    Exceptional service, information and reassurance in a fast-paced business.

    Delivery truck unloading at a commercial loading dock

    Managing risk in one of the world's largest industries.

    Global Transportaion Preview Cards 3 480X270

    Frictionless intake, rapid response, and comprehensive coverage.

  • Innovation
    • Crawford Technologies
    • Asservio
    • On-Demand Estimatics
    • WeGoLook
    • YouGoLook
    • 3D Property Scan
    • Digital Desk
    • Digital Assist
    • TruLook
    • Recall 360
    • Escape of Water
    Global Innovation Preview Cards 480X270 V2

    We’re not just embracing change, we’re leading it.

    Global innovation asservio preview

    Leading-edge estimate review technology that eliminates friction and ensures faster, more accurate property repair estimates.

    Global code preview

    Streamlined, accurate estimating from a single source.

    Global Wegolook Preview Cards 480X270

    Combining technology with an on-demand workforce to help businesses gather and validate information anytime, anywhere.

    Global yougolook preview 1 480x270

    Empowering policyholders to safely submit their own claims data.

    Global innovations 3d property scan previewcard

    Get a detailed report with measurements and information about the exterior of a property by taking just a few perimeter photos.

    Digital desk preview 480x270

    Access next-gen claims processing

    Global digital assist preview card

    Using Digital Assist, adjusters can quickly and easily request the individual services they need to close claims.

    Global Tru Look Preview Cards 480X270 V2

    Claims handling that adapts to your needs.

    Global Preview Recall 360 480X270

    Helping you prepare for and respond to any product recall.

    Global Escape Of Water

    Combining IoT technology with IICRC certified water loss specialists to deliver rapid and reliable response.

  • Expertise
  • About
    • Our Story
    • Our Locations
    • Leadership
    • Investors
    • Global Citizenship
    • Careers
    • Press
    • Blog
    • Contact us
    Global Our Story Preview Cards 480X270 V2

    Learn about Crawford's mission, vision, values, and the over 75 years of history that have made us who we are today.

    Global Locations Preview Cards 480X270

    With hundreds of offices and service centers around the world, Crawford is everywhere you need to be.

    Global leadership previewcard 2 480 X270

    Crawford’s strong and seasoned leadership team leverages its extensive knowledge and industry experience to drive our business.

    Global Investors Preview Cards 480X270

    Visit Crawford's investor relations website for news and information relevant to our shareholders.

    Global gcr preview 480x270

    We strive to make a positive impact on the communities in which we live and work.

    Global Preview Careers 480X270 V2

    At Crawford, employees are empowered to grow, emboldened to act and inspired to innovate. Won't you join us?

    Global Press Preview Cards 480X270

    Discover recent placements, company news and additional Crawford resources.

    Global Blog Nav Preview

    The Crawford blog publishes regularly on our people, our company and the industries we serve.

    Global Contact Us Preview Cards 480X270 V2

    We’re here to help! Team members around the world are standing by to assist you and your business.

  • Resources
  • Free Consultation
  • Home
  • Blog
  • Post
  • Blog
  • Post
  • Category:
  • All Categories
    • Company
    • Expertise
    • Innovation
    • People
    • Services
    • COVID-19
    • Legal Services

Monday, July 12, 2021

To avoid splinters, don’t sit on the fence

Blog post crawco legal 2021 Q2 injured worker

The recent case of Mustard v Flower & Ors [2021] EWHC 846 (QB) raised an interesting point in relation to a Defendant seeking to amend their defence to raise the spectre of fundamental dishonesty.

This case serves as a reminder for defence lawyers on how to approach this conundrum; particularly in relation to claims involving complex injuries when there are a range of expert opinions.

The facts

The matter revolved around a claim for personal injury following a road traffic accident in 2014.

There were numerous issues between the parties; excluding liability, which had been admitted. The Claimant is said to have had a complex prior medical history but alleges as a result of the index accident she suffered a subarachnoid brain haemorrhage two days after the accident.

There was dispute between the experts in relation to the Claimant’s presentation, together with the relevance and interpretation of her pre-accident medical history. The velocity of the accident was key to many of these disputes. In this regard the Defendant says this was a minor accident, while the Claimant says it was a moderately severe accident. Of importance the Defendant’s experts said the Claimant had not suffered a brain injury, which the Claimant’s experts disagreed with.

The application

What the Defendant sought to do is not unique, not least when as it appears in this case that the defendant was faced with a potentially large claim and the expert evidence was diametrically opposed. Clearly the question at the back of the defendant’s mind was whether the Claimant was consciously exaggerating her symptoms or not

Therefore they sought to amend their defence to raise these concerns. What they did not do was to specifically plead fundamental dishonesty, but sought to plead that they reserved the right to raise such an issue. The draft pleading was as follow:

"4.4 The Claimant’s accounts of the RTA and its immediate aftermath, and the nature and severity of her symptoms both before and after the accident have varied over time, are unreliable and are in issue. They have been exaggerated (or in the case of her preRTA history minimised) either consciously or unconsciously – the Third Defendant cannot say which absent exploring the issues at trial. In the event that the Court finds that the Claimant has consciously exaggerated the nature and/or consequences of her symptoms and losses, the Third Defendant reserves the right to submit that a finding of fundamental dishonesty (and the striking out of the claim pursuant to section 57 Criminal Justice and Courts Act and/or costs sanctions including the disapplication of QOCS) is appropriate."

The Claimant did not agree the amendment; save for the first sentence. Therefore the matter proceeded to a hearing before Master Davison.

Decision

Master Davison refused the permission for the amendment as drafted and removed the following element:

“In the event that the Court finds that the Claimant has consciously exaggerated the nature and/or consequences of her symptoms and losses, the Third Defendant reserves the right to submit that a finding of fundamental dishonesty (and the striking out of the claim pursuant to section 57 Criminal Justice and Courts Act and/or costs sanctions including the disapplication of QOCS) is appropriate.The Claimant had also wished the second sentence of the amendment to be removed, i.e. They have been exaggerated (or in the case of her pre-RTA history minimised) either consciously or unconsciously – the Third Defendant cannot say which absent exploring the issues at trial.”

Master Davison did not accept this argument and quite rightly allowed this element of the amendment, on the basis that the Claimant was being told what the issue was, i.e. was not going to be ambushed with such an assertion at trial.

Master Davison reiterated the established principle that fundamental dishonesty does not need to be pleaded. This appears to have been at the forefront of Master Davison’s thoughts when refusing the Claimant’s request to remove the second sentence of the amendment.

Equally, Master Davison was concerned that if the amendment was allowed in full, this would potentially have a significant impact upon the Claimant’s funding of the case, i.e. such a pleading would have to be reported to the legal expense insurer, who could seek to void the policy ab initio.

Comment/lessons to be learnt

Ultimately, this case serves as a reminder that speculative and uncorroborated (no expert had raised exaggeration in their reports) or conditional pleadings of fundamental dishonesty will not be approved and should be avoided

However this very reasoned judgement allows the Defendant to raise their concerns in relation to potential conscious exaggeration of symptoms at trial. However, quite rightly, Master Davison seems to have concluded that the appropriate forum for these issues to be decided would be the trial itself

The Defendant has the right to raise the argument and indeed should do as soon as possible to avoid an ambush. If evidence of dishonesty comes to light, the Defendant will of course be in a position to raise s.57 of The Criminal Justice and Courts Act 2015 at trial.

However, on the basis of a speculative pleading, the Claimant is not going to be potentially precluded from pursuing their claim in light of the potential implications to her funding of the claim.

Master Davison emphasised that nothing in this decision veered from the “cards on the table approach” that the parties should conduct litigation.

Therefore in cases when there is prima facie evidence of dishonesty, the Defendant should seek to clearly plead this.

Important note: This commentary is for information purposes only and should not be taken as legal advice.

Related posts

Image of successful judgment on gap fraud.

Wednesday, February 23, 2022

Crawford Legal Services strikes again, taking down GAP fraud

Read more about Crawford Legal Services strikes again, taking down GAP fraud
People working together on signing a contract

Monday, November 22, 2021

Fraud Recovery: judgement for £39k including £15k exemplary costs

Read more about Fraud Recovery: judgement for £39k including £15k exemplary costs
Cls 2021 blog post new hire

Wednesday, February 17, 2021

HBA Legal appoints more top talent in Brisbane

Read more about HBA Legal appoints more top talent in Brisbane

Crawford & Company logo

Services

  • Loss Adjusting
  • Third Party Administration
  • Managed Repair
  • Medical Management
  • On-Demand Services
  • Catastrophe Response
  • Full Service Catalog

Industries

  • For Carriers
  • For Brokers
  • For Corporates
  • For the Lloyd's Market
  • For Construction
  • For Healthcare
  • For Hospitality
  • For Transportation

About

  • Our Story
  • Our Locations
  • Leadership
  • Global Citizenship
  • Careers
  • Press
  • Blog
  • Contact

Legal

  • Terms of Use
  • Privacy Policy
  • Cookie Policy
  • Employment Policy
  • EU Privacy Notice
©2023 CRAWFORD & COMPANY. All Rights Reserved.
  • Home
  • Services
    • Loss Adjusting
    • Third Party Administration
    • Managed Repair
    • Medical Management
    • On-Demand Services
    • Catastrophe Response
    • Full Services Catalog
  • Industries
    • Insurance & Risk
    • Carriers
    • Brokers
    • Corporates
    • The Lloyd's Market
    • Other Industries
    • Agriculture
    • Construction
    • Entertainment and Events
    • Finance
    • Healthcare
    • Hospitality
    • Manufacturing
    • Marine
    • Mining
    • Power and Energy
    • Public Sector
    • Real Estate
    • Retail and Wholesale
    • Transportation
  • Innovation
    • Crawford Technologies
    • Asservio
    • On-Demand Estimatics
    • WeGoLook
    • YouGoLook
    • 3D Property Scan
    • Digital Desk
    • Digital Assist
    • TruLook
    • Recall 360
    • Escape of Water
  • Expertise
  • About
    • Our Story
    • Our Locations
    • Leadership
    • Global Citizenship
    • Careers
    • Press
    • Blog
    • Contact us
  • Resources
  • More from Crawford
  • Investors
  • Careers
  • Blog
  • Subscribe
  • Login
    • CMS Portal
    • CAT Adjuster Portal
    • VTECH
    • XactAnalysis
  • Submit a Claim
    • US Claim Submission Portal
    • Text "Claim" to 877-531-4803
  • 24/7 Hotlines
    • ClaimsAlert Hotline
    • 877-346-0300
    • Transportation Claims Hotline
    • 866-420-1689
    • Submit a Claim
    • US Claim Submission Portal
    • Text "Claim" to 877-531-4803
  • Search for Expertise

Interested in learning more?
Get a free consultation with one of our experts.

Complete this form and we’ll get back to you at the contact details provided.