Deterrent strategies in fraud litigation, September 2017, Birmingham

Deterrent strategies in fraud litigation
September 2017, Birmingham

Update on Section
57 of the CJCA
2015
David Callow

Background
 Before the commencement of the Act a claimant who intimated a
genuine claim which was (i) either tainted with fraud itself; or (ii)
related to a fraudulent claim, would be awarded damages for the
genuine element of their claim but would be penalised in costs.
 See Ul-Haq v Shah [2009] which concluded that the dishonest
assertion of a claim by a co-claimant did not prevent recovery of the
sums properly due to a claimant. This applied even if the court had
found that the claimant had dishonestly supported the fraudulent
claim.
3

Background- Summers
 The Supreme Court observed that a ‘judgment’ for the honest/genuine parts of the claim is a
possession, and a court should be slow to deprive a claimant of his substantive rights. There
are a number of other steps available to the court (costs orders, contempt proceedings etc).
Striking out is a draconian step, especially so where there has already been a trial:
 “The draconian step of striking a claimant is always a last resort, a fortiori where to do
so would deprive the claimant of a substantive right to which the court had held that
he was entitled after a fair trial. It is very difficult indeed to think of circumstances in
which such a conclusion would be proportionate. Such circumstances might, however,
include a case where there had been a massive attempt to deceive the court but the
award of damages would be very small.”(per Lord Clarke para 49).
 On its face effect of Summers was to make it very difficult for
defendants to successfully strike out claims at the conclusion of a
trial even where the overwhelming majority of the claim was
demonstrably false.
 There have however been many examples where the Courts have
been more than willing to strike out cases at an interlocutory stage
where there is clear evidence of dishonesty in relation to what might
be called “fundamental” elements of the claim.
4

Relevant Provisions
s57 of the Criminal Justice and Courts Act 2015
(1)This section applies where, in proceedings on a claim for damages in respect
of personal injury (“the primary claim”)—
(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.
5

6
CPR 44.16:
(1) Orders for costs made against the claimant may be enforced to the full extent of
such orders with the permission of the court where the claim is found on the balance of
probabilities to be fundamentally dishonest.
PD44.12(4) supplements the Fundamental Dishonesty provision:
In a case to which rule 44.16(1) applies (fundamentally dishonest claims) –
(a) the court will normally direct that issues arising out of an allegation that the claim is
fundamentally dishonest be determined at the trial;
(b) where the proceedings have been settled, the court will not, save in exceptional
circumstances, order that issues arising out of an allegation that the claim was
fundamentally dishonest be determined in those proceedings;
(c) where the claimant has served a notice of discontinuance, the court may direct that
issues arising out of an allegation that the claim was fundamentally dishonest be
determined notwithstanding that the notice has not been set aside pursuant to rule 38.4;
(d) the court may, as it thinks fair and just, determine the costs attributable to the claim
having been found to be fundamentally dishonest.
Copyright 2003 6

7
Same but different?
 The test is currently being interpreted and applied in the same way for both
provisions.
 The regimes however have important differences.
 Where an application under CPR 44.16 is successfully made, and
QOCS protection is set aside on the grounds of the claimant’s
fundamental dishonesty, then a defendant is entitled to enforce a costs
order to the full extent of the costs awarded.
 However, if a defendant’s s57 application is successful, then the
notional damages calculation made by the court will be utilised in
determining the claimant’s costs liability to the defendant. Under s57(5)
the claimant will only be ordered to pay the costs over and above the
extent of damages that would otherwise have been awarded.
 See for practical purposes Stanton-v-Hunter (Liverpool CC
31/3/17 Recorder Hatfield Q.C.) where the “genuine” claim
was assessed at £51,625.
Copyright 2003 7

8
Guidance -Gosling
 Gosling v Hailo & Screwfix (Cambridge CC, 29/04/14)
 The claimant experienced a serious injury to his knee. Of that there was no doubt. He
had to undergo a knee replacement which was attributable to his accident. However, he
claimed that he required continued use of a crutch, experienced ongoing significant
symptoms, and that his ability to work was compromised as a result.
 The defendant obtained surveillance evidence. That evidence showed him walking
around a “warehouse superstore” without a crutch (and bending, lifting etc) and walking
around Asda, pushing a trolley, loading his van, not using a crutch etc. That same day
he attended on the defendant’s expert for examination. He was seen just prior to the
examination going to the back of his van, removing a crutch from the van, and walking
into the appointment with the crutch supporting him.
 Having seen the surveillance evidence, the medical experts in the case concluded that
in their view the claimant was not being honest about his symptoms and problems.
 C settled with D1 (on terms far less advantageous than he was claiming) and
discontinued against D2. Ordinarily D2 would be entitled to costs however QOCS bites.
An application was therefore made to disapply QOCS pursuant to CPR44.16.

 His Honour Judge Moloney concluded that excluding the claimant’s
exaggerated/fabricated symptoms and losses said to be attributable
to those made-up symptoms were reduced by around 50%and
concluded (at para 49):
 “Overall, I therefore conclude that in relation both to that very
substantial element of his claim, future care, and in relation to
an even larger part of his claim, general damages for pain,
suffering and loss of amenity, the dishonesty in question here, if
established, is fundamental to those heads of damage, and
thus to around half of the total claim in damage terms. It
appears to me to be very clear that on any sensible definition of
a “fundamentally dishonest claim”, dishonesty crucial to such a
large part of the claim under those two heads is sufficient to
enable the claim to be characterised as fundamentally
dishonest.”
9

Gosling
 The term has to be interpreted “purposively and contextually in the light of
the context”;
 - There will be a consideration of whether the claimant is “deserving” (see
Jackson LJ’s introduction to CPR44 in The White Book);
 There are two levels of dishonesty – dishonesty in relation to the claim
which is not fundamental, and dishonesty which is;
 The corollary term to fundamental would be a word with such meaning as
“incidental” or “collateral”. And so:
 “a claimant should not be exposed to costs liability merely because he
is shown to have been dishonest as to some collateral matter or
perhaps as to some minor, self-contained head of damage. If, on the
other hand, the dishonesty went to the root of either the whole of his
claim or a substantial part of his claim, then it appears to me that it
would be a fundamentally dishonest claim: a claim which depended as
to a substantial or important part of itself upon dishonesty.”
10

Bain
 Zurich Insurance Plc v Bain (HHJ Freedman, Newcastle upon Tyne County
Court, 4th June 2015) was an appeal against the decision of a District
Judge.
 The accident occurred in a car park when the third party emerged from a
parking space and reversed into the claimant’s car at low speed. Liability
was admitted and the vehicle repairs were discharged. There was a
telephone conversation around 11 weeks after the accident where C
indicated that he had not suffered injury and gave the insurer permission to
close the file.
 In due course, C was called by claims management companies and
instructed solicitors. A medical report obtained 11 months after the accident
diagnosed moderate low back pain for 8 weeks and made no mention of pre-
existing back pain. The defence pleaded reliance on the telephone call and
asserted that the accident was incapable of causing occupant
displacement/injury.
 The District Judge found that C had not suffered injury in the accident and
that he had been untruthful to the reporting medic but refused to exercise his
powers under 44.16.
11

 On appeal, His Honour Judge Freedman allowing the appeal held:
 “What it comes to is this: what does fundamentally dishonest mean? It does
not, in my judgment, cover situations where there is simply exaggeration or
embellishment. It is not unknown for these courts to hear claimants who appear to
have suffered injury but who, whether consciously or otherwise, overstate the
extent of their injuries. Therefore, for example, commonly, a soft tissue injury of
the neck or back may be said to be more severe than a court concludes it actually
was. That would not be fundamentally dishonest. Equally, in the experience of
these courts, from time to time, schedules of loss are presented which somewhat
magnify the degree of disability… That would not be fundamentally dishonest.
 Where I am quite satisfied fundamental dishonesty does arise is where it goes
to the core of the claim… If, as the judge found, the claimant suffered no injury,
there was no claim here. It follows that this claim would never have been started
but for Mr Bain’s false assertion that he had suffered injury. It seems to me,
therefore, that the dishonesty here goes far beyond mere exaggeration; it props
up, and provides the sole basis for the claim…
 It seems to me that in looking at the issue of fundamental dishonesty a Court
is entitled to consider not only the effect of the dishonesty but also the degree of
dishonesty…”
12

Other Guidance
 In the third Implementation Lecture, Jackson LJ referred to the issue of satellite litigation
(para 2.3) and observed that:
“Any major civil justice reform is followed by litigation in which parties test the boundaries of the new
rules. A view robust Court of Appeal decisions are needed to deal with the points raised. If the rule is
supplemented by an elaborate practice direction, opportunities for satellite litigation will increase
exponentially, as practitioners explore the relationship between the provisions, possible interstices in
the language, and so forth. One lesson from the costs war is that lawyers leave no stone unturned
when it comes to arguing about costs.”
In s4 of the lecture he deals with QOCS:
“What conduct will deprive the claimant of costs protection? This issue is discussed in the workshop
materials. I agree that if the claimant’s claim is fraudulent or is struck out as an abuse of process, the
claimant should forfeit costs protection. However, I do not believe that either litigants or the court will
be assisted by practice direction which gives guidance on the borderline cases. Any such guidance is
likely to generate increased satellite litigation for the reasons set out in para 2.3 above. There is a
whole Costs Bar out there just waiting to sink its teeth into the new provisions.”
13

 In respect of s57, Lord Faulks (Minister of State and the
representative of the Government in the House of Lords), conceded
that (Hansard, 23/07/14, Lords, Column 1268):
“Of course “fundamental” has an echo in the Civil Procedure Rules
and the qualified, one-way costs shifting. An adverb to qualify such
a concept as dishonesty is not linguistically attractive, but if we ask
a jury to decide a question such as dishonesty, or ask a judge to
decide whether someone has been fundamentally dishonest, it is
well within the capacity of any judge. They will know what the clause
is aimed at – not the minor inaccuracies about bus fares and the
like, but something that goes to the heart. I do not suggest that it win
many prizes for elegance, but it sends the right message to the
judge.”
14

 The Ministry of Justice had provided guidance prior
to the commencement of the Act suggesting the
"related" claims to which section 57 would apply
include phantom passenger claims when it stated
that "where the claimant colludes in a fraudulent
claim brought by another person in connection with
the same incident or series of incidents in
connection with which the primary claim is made –
for example, a claim by a “phantom passenger” in
a road traffic accident".
15

The Irish Experience
Ireland is a long way ahead of England and Wales. In 2004 the Civil
Liability and Courts Act was passed. Section 26 provides as follows:
26.—(1) If, after the commencement of this section, a plaintiff in a
personal injuries action gives or adduces, or dishonestly causes to
be given or adduced, evidence that—
(a) is false or misleading, in any material respect, and
(b) he or she knows to be false or misleading,
the court shall dismiss the plaintiff's action unless, for reasons that
the court shall state in its decision, the dismissal of the action would
result in injustice being done…
16

 (2) The court in a personal injuries action shall, if satisfied that a
person has sworn an affidavit under section 14 that:
 (a) is false or misleading in any material respect, and
 (b) that he or she knew to be false or misleading when swearing the
affidavit,
dismiss the plaintiff's action unless, for reasons that the court shall
state in its decision, the dismissal
 of the action would result in injustice being done.
 (3) For the purposes of this section, an act is done dishonestly by a
person if he or she does the act with the intention of misleading the
court.
 (4) This section applies to personal injuries actions:
(a) brought on or after the commencement of this section, and (b)
pending on the date of such commencement.
17

 Some of the points likely to arise have already been considired by
the Irish Courts. For example:
 Abandoning the tainted elements does not necessarily save
C - Farrell v Dublin Bus [2010] IEHC 327 p.75
 Separating out the good from the bad is not permissible –
Meehan v BKNS Curtain Walling Systems Ltd & Others [2012]
IEHC 441
 Understandable exaggeration has been recognised in some
cases – Ahern v Bus Eireann [2011] IESC 44 (This reflects of
course the long-standing approach in E&W)
18

Repeat Applications?
 Section 57 is not an end of Summers.
The provision only applies where “the court finds that
the claimant is entitled to damages in respect of the
claim.” Will this lead to tactical admissions where there
has been clear dishonesty on the issue of quantum?
Also ss4 and 5 clearly relate to the court determining
quantum which can only really be done at a final
hearing.
Thus interim applications applying the ‘old’ guidance
are still live. No doubt s57 will be referred to in order to
strengthen any such application.
19

Likely Arguments
 Some of the (somewhat whiney) points raised so far include:
 Burden/ standard of proof – enhanced civil standard.
 “Parity” – D is already found to be “in the wrong” and therefore
“two wrongs don’t make a right”!
 Need for pleading/ how should it be raised – Mullarkey/ Re H. (
see of course Otkritie International Investment Management Ltd
–v- Urumov [2013] EWCA Civ 1196.
 Expect repeated re-hashing of every conceivable argument re
inconsistent medical records/ absence of records, reliability of
evidence based on memory. In essence all of the points that
tended to fall away when all that a C stood to lose was any
dishonest element.
 That any old nonsense is “substantial injustice”
20

The saving provision
 When can C rely on this?
 The provision is (perhaps oddly) personal to the Claimant as
opposed to the administration of justice/ a fair trial.
 Should it be held to apply if the only honest element is (a) past care
which is held on trust for an entirely honest third party (b) future care
needs or aids/ equipment?
 Can and should the Court look behind the reason for the
dishonesty?
 Is this an open door for allegations by Cs against CMCs and claims
factory solicitors?
21

In Ireland?
For the most part, these are fairly obvious examples where a similar
result would be reached under s57. However, what does come through
is that the court embarks on a far wider examination of dishonesty such
that even trivial matters have led to dismissal (but where there has
nonetheless been a clear attempt to deceive). The High Court of Ireland
has expressed the view that it might be an injustice to deprive a
Claimant of his claim where, for example, that claim comprises
significant future care costs and the dishonesty related to a very trivial
matter that by comparison would affect a modest part of the claim.
Perhaps such an approach proves the critics of s57 right when they
argue that ‘fundamental dishonesty’ renders the saving provision
meaningless or, looked at another way, the term fundamental is
meaningless if there is to be a saving provision?
22

Where Next?
 s28 of the Civil Liability and Courts Act 2004
provides that undeclared earnings shall not be
considered by the court in a claim for lost earnings
unless the court considers it would be unjust not to
do so.
 Is this the natural next step for us?
23

THE POWER
OF BEING
UNDERSTOOD
AUDIT | TAX | CONSULTING

HOW TO CONDUCT AN INVESTIGATION IN
PREPARATION FOR POTENTIAL CRIMINAL ACTION
BRADLEY VAUGHAN – MANAGING CONSULTANT

First Steps
Receipt of allegation
• Liaison with key contact
• Risk assessment
• Case management – electronic/paper
• Liaison with HR/Personnel
• Initial enquiries

Investigation Plan
Investigation Preparation
• Referral details
• Initial enquiries undertaken
• Enquiries to be conducted
• Organisational Risks - Reputational/Financial
• Team
• Lines of Enquiry

Investigation
Investigation
• Liaison with Police?
• Analysis of evidence obtained
• Points to prove
• Witness interviews
• Suspect Interviews
• Further lines of enquiry
• Sharing information

Outcomes
Investigation
• Debrief
• Report – including options
• Criminal/Civil/Disciplinary
• Information sharing considerations

Contact:
Bradley Vaughan - Managing Consultant
St Philips Point,
Temple Row,
Birmingham,
B2 5AF
Email: bradley.vaughan@rsmuk.com
T: +44 (0)121 214 3100
M: 07436 268331

Thank you
for your time
and attention

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Sanctions
- non party costs recovery
By Paul Wainwright,
Partner & Head of Counter fraud

Happy with the successful outcome?

What about costs recovery?
• Claimant is impecunious – or appears to be and is
not responding
• QOCs applies
• No finding of “fundamental dishonesty” or fraud
• ATE/BTE/Insurers are not indemnifying
• Claimant solicitors have come off record
• No obvious party to recover from

Other sources of payment
• LJ Phillips in Murphy & Anor v Young & Co's Brewery Plc & Anor
[1996] EWCA Civ 1000 (20 November 1996) re maintenance

Identifying the “real” party
• Identify who has a potential liability for costs
– Those who “control” litigation: CHO’s (Farrell & Short v
Birmingham & DAMS)
– Facilitators of fraud : AMC’s (Hassan v Cooper & Accident
Claims Consultants Ltd).
– Insurers (ATE/BTE) who fund and commercially benefit
– Solicitors/Barristers – “Legal representatives”
– Witnesses (see Facilitators) (Symphony Group PLC v
Hodgson[1994] QBD)
– Experts (Jones v Kaney [UKSC] 2011)
NOT “pure funders” (Hamilton v Al Fayed (no 2) [2003]).

Applications against non-parties
• Lead cases is Dymocks Franchise Systems v Todd [2004]
1WLR 2807
• Warning of likely joinder at the earliest opportunity
• Costs orders vs non-parties are
– “Exceptional”; and “fact sensitive”
– “outside the run of the cases where parties pursue and
defend cases at their own cost and for their own benefit”
• Test – “whether it is just in all the circumstances”
• Courts wide discretion.

Procedure for recovery
• Wasted costs against legal representatives
• under CPR 46.8 ( PD46 para 5) & s 51(6) Senior Courts Act 1981
• Improper unreasonable or negligent incurring unnecessary costs
• Just in all the circumstances
• Third party or non-party costs orders
• Under CPR 46.2 pursuant to Section 51(1) & (3) of the Senior
Courts Act 1981.
• Simple summary process
a) Permission and Joinder BUT for costs only
b) Evidence - Right of reply and to be heard
c) Determination by the trial judge
d) Reported to regulators by the Court (s 67 CJ & C Act 2015)

Case study – Solicitors (1)
• Dickson v NFU Mutual v Barber & Co.
– RTA June 2011
– CNF submitted by Barber & Co and
– Medical report settled claim 50:50 at £1250
– 2nd CNF produced by another firm.
– Proceedings issued – defended on compromise.
– Claimant denies instructing Barber & Co
– Expert denies its their medical report or signature

Case study – Solicitors (2)
• Barber & Co joined as non-party for costs purposes
pursuant to CPR 46.2
• Admission March 2017 Claimant not their client
• Main claim settled.
• Issue decided before HHJ Peter Hughes QC:
– Substantial delay, adding to costs by conduct of
Barber & Co
– Costs awarded on an indemnity basis

Final words…
• HHJ Peter Hughes QC:

Summing up
• Where fraud is identified there could be other
sources of payment of adverse costs at the
successful conclusion of the case.
• Consider if this applies and identify their ability to
pay and the commercial benefit in doing so.
• Seek advice where appropriate
• Put the party on notice and pursue the case
vigorously.

Contact us…
Paul Wainwright
E: paul.wainwright@brownejacobson.com
T: +44 (0)121 237 4577

Forensic Science:
Applications beyond the norm and as an
fraud investigation tool
Abi Carter
BSc, MSc, M.A.B.I

FRL Services
• Accountancy/Loss of earnings
• Archaeology/Land surveys
• Arson/Fire Regulations
• Audio & Video Enhancement
• Blood Alcohol Concentration
• Bloodstain Pattern Analysis
• Body Fluids
• Botany/Palynology/Entomology
• Cell Site Analysis
• Computer/Digital Analysis
• Covert Surveillance
• DNA
• Document Analysis
• Drug Testing/valuations
• Facial/image mapping
• Fibres
• Fingerprints
• Firearms/Ballistics & Residue
• Glass
• Hair
• Handwriting
• Injury assessments
• Metallurgy/Polymer failure
• Mobile Phones
• Odontology
• Paint
• Psychiatry/Psychology Exams
• Toxicology
• Vehicle Analysis

Accountancy
• Full investigative process
• Petty Cash case study
• Till case study

Handwriting/Documents
• Alterations
• Indentations
• Signs of editing (Photoshop)
• Cutting/Pasting
• Out of focus lines/wording
• Signature/handwriting forgeries

Alterations
The most common alterations are to values and dates
An invoice for £800? Originally £500 before
being altered!

Alterations
Correcting Fluid

Alterations
Shareholder Stubs
18/4/88
18/4/87

Alterations
Clocking in/out card
‘normal’ daylight
Near infra-red light
Strong blue/green light

Indented Impressions
A receipt issued in
February 1998
Indented upon it are
details from the
previous receipt –
dated March 1998

Photoshop/Photocopy

Beware of some ‘originals’!
This serial number is false…..
Photoshop/Photocopy

Expert Requirements
• Like for Like
• Originals vs Photocopies
• Scale of evidence, not statistical result

What to be suspicious of
• Coffee / Tea stains, Water damage
• Children’s drawings
• Screwed up paper/torn or stuck together
• Overwriting
• Handwriting on printed documents
• Faded writing – thermal till rolls
• ‘Blotchy Pen’ writing

Digital
• Hacking
• Who are you most concerned about?
• Hard drive interrogation
• Timeline building
• E-Disclosure

Digital
• Mobile phone analysis
• Password over-riding
• Chip off
• Conversation logs via whatsapp/BBM etc
• Live and deleted data….

Blackberry Q10 Chip-Off Recovery
unsupported by forensic software

Digital
• Water damaged equipment – data recovery
• Audio/video
• Signs of editing/splicing

‘Other’ Digital
• Infotainment
• Facial & image mapping
• Social media interrogation
• Photograph interrogation….

Photograph Interrogation
• Picture
• Picture size in pixels
• Path
• Created (UTC)
• Modified (UTC)
• Size
• Resolution
• Detected
• Modification probability
• Face recognition result
• Faces Count
• Is picture detected as porn
• Related audio file
• Valid image height
• Valid image width
• Colour space information
• Exposure program
• Exif version
• Device settings description
• Gain control
• Subject area
• Scene type
• File source
• CFA pattern
• Y and C positioning
• Lens focal length
• Flash
• Light source
• Metering mode
• Subject distance
• Maximum lens aperture
• Supported Flashpix version
• Date and time of digital data generation
• Date and time of original data generation
• Color space transformation matrix coefficients
• Shutter speed
• Subsampling ratio of Y to C
• Chromaticities of primaries
• Person who created the image
• Exposure bias
• Brightness
• Aperture
• F number

• Sensing method
• Exposure index
• Subject location
• White point chromaticity
• Bytes of JPEG data
• Offset to JPEG SOI
• Focal plane resolution unit
• Focal plane Y resolution
• Focal plane X resolution
• Spatial frequency response
• Flash energy
• File change date and time
• Software used
• Transfer function
• Unit of X and Y resolution
• ISO speed rating
• Orientation of image
• User comments
• Spectral sensitivity
• IDateTime subseconds
• Image data arrangement
• Image compression mode
• Bytes per compressed strip
• Number of rows per strip
• Number of components
• Image data location
• Image input equipment model
• Meaning of each component
• Manufacturer notes
• Sharpness
• Image title
• Pixel composition
• DateTimeDigitized subseconds
• DateTimeOriginal subseconds
• Image resolution in width direction
• Image input equipment manufacturer
• Reference for distance to destination
• Compression scheme
• Image height
• Image width
• Unique image ID
• GPS date
• Name of GPS area
• Distance to destination
• Subject distance range
• Bearing of destination

• Saturation
• Contrast
• GPS differential correction
• Scene capture type
• Focal length in 35 mm film
• Digital zoom ratio
• White balance
• Exposure mode
• Custom image processing
• Reference for bearing of destination
• Longitude of destination
• Reference for longitude of destination
• Latitude of destination
• Reference for latitude of destination
• Geodetic survey data used
• Direction of image
• Reference for direction of image
• Direction of movement
• Reference for direction of movement
• Speed of GPS receiver
• Speed unit
• Measurement precision
• GPS measurement mode
• GPS receiver status
• GPS satellites used for measurement
• GPS time (atomic clock)
• Altitude (m)
• Altitude reference
• Longitude
• East or West Longitude
• Latitude
• North or South Latitude
• GPS tag version
• Name of GPS processing method
• Number of bits per component
• Image resolution in height direction
• Optoelectric conversion factor

Digital
What to think about
• Ransomware/ IT security/Penetration test
• Unsecure Wi-Fi
• Administration password security (inside job)
• Back up security
• Overwriting
• Metadata alterations – need originals
• Forensic images
• Caveats

Damage Analysis
• Suspected intentional damage:
• Paint spill patterns
• ‘Non-slip’
• Gas canister
• Metal damage
• Glass fracture
• Escaped water/oil
• Plastics/composites
Personal injury claims from failures
• Separate medical opinion for the actual injuries

Road Traffic Collisions
• Operation DINO
• Reconstruction of the events
• Damage to each vehicle
• Speed estimations
• Refute or corroborate defence statements
• Associated injuries
• Associated toxicology

Fire Investigations
• Non-electrical testing desktop preliminary
reviews.
• Fire regulations assessments.

Some strange ones…
• Fibre testing
• Psychiatry
• Tag Tracing
• Paint
• Firearms: Imitations & ballistics fraud
• Fingerprints
• Botany fire
• Voice comparison

Things to think about…
• Preservation of evidence
• Chain of custody
• Consent
• Makes/models/age of devices

• Accountancy/Loss of earnings
• Archaeology/Land surveys
• Arson/Fire Regulations
• Audio & Video Enhancement
• Blood Alcohol Concentration
• Bloodstain Pattern Analysis
• Body Fluids
• Botany/Palynology/Entomology
• Computer/Digital Analysis
• Covert Surveillance
• DNA
• Document Analysis
• Drug Testing/valuations
• Facial/image mapping
• Fibres
• Fingerprints
• Firearms/Ballistics & Residue
• Glass
• Hair
• Handwriting
• Injury assessments
• Metallurgy/Polymer failure
• Mobile Phones
• Odontology
• Paint
• Psychiatry/Psychology Exams
• Toxicology
• Vehicle Analysis

Fraud and contempt
of court
William Featherby QC
September 2017

85
Fraud: the problem
Vast and increasing fraud, much of it encouraged by
‘professionals’. An apathetic and ineffectual civil and
criminal justice system.
Shah v. Ul-Haq and others [2009] EWCA 542

Contempt of court: what it is not
 Applications to commit contemnors to prison are
NOT the same as:-
 Actions for the tort of deceit
 The crimes of
• Fraud
• Perjury
• Perverting the course of justice
86

Contempt of court
 CPR Part 32.14(1) provides:-
Proceedings for contempt of court may be brought
against a person if he makes ... a false statement in a
document verified by a statement of truth without an
honest belief in its truth.
 (NB also CPR Part 31.23(1))
87

Contempt of court: Permission
 Permission should be given where:-
there is a strong prima facie case of contempt
of court;
proceedings would be in the interests of justice
and/or in the public interest;
proceedings would be proportionate and in
accordance with the overriding objective.
 but the discretion should be exercised with great
caution.
88

Contempt of court: Ingredients
 The Applicant must prove:-
the falsity of the statement in question;
that the statement has, or if persisted in would
be likely to have, interfered with the course of
justice in some material respects;
that, at the time it was made, the maker of the
statement had no honest belief in the truth of
the statement; and
 that, at the time it was made, the maker of the
statement knew of its likelihood to interfere with the
course of justice.
89

Contempt of court
 Pleadings / Statements of Case (N.B. which
might, by reference, incorporate other
documents e.g. medical reports);
 Part 18 Answers;
 Schedules of Special Damage / Loss;
 Disclosure statements (See CPR Part 31.23);
 Witness statements.
90

Contempt of court: Defences
 I was telling the truth. (I only exaggerated a little
bit.)
 I didn’t really think that what I am seen doing in the
DVD’s was inconsistent with my case. I wasn’t
really working as such; I was helping a mate.
 Good days; bad days.
 My solicitor misunderstood me.
 My solicitor made it all up. I didn’t authorise my
solicitor to sign the document that contains the lies.
 The expert misunderstood me.
 That’s not what I told the expert.
91

Contempt of court: Defences
 I wasn’t shown the experts’ reports.
 I didn’t read the document containing the lies
before signing it.
 I was too ill to read and/or understand the
document that contains the lies when I signed it.
 My solicitor didn’t advise me how serious telling
lies might be.
 It’s not my signature.
 My lies wouldn’t have made any difference to the
measure of damages.
 The insurers would have found me out anyway; my
lies made no difference to the outcome.
92

Contempt of court: Penalties
 Up to 2 years imprisonment
 Custodial sentence may be suspended
 Unlimited fine
South Wales Fire and Rescue Service v Smith [2011]
EWHC 1749 (Admin): Moses LJ
93

Fraud: The Fraud Act 2006
Section 2:
A person is in breach of this section if he dishonestly
makes a false representation, and intends, by making
the representation, to make a gain for himself or
another…
A representation is false if it is untrue or misleading,
and the person making it knows that it is, or might be,
untrue or misleading.
94

Private prosecution: procedure
 ‘Lay’ an information
 Summons issued
 Initial hearing in magistrates’ court
 To the Crown Court
 PTPH
 Trial
 Sentence
95

Private prosecution: sentence
Maximum sentence: 8 years imprisonment.
If the fraud involved more than £20,000 the starting
point is a custodial sentence.
Costs out of central funds.
96

All information correct at time of production.
The information and opinions expressed within this document are
no substitute for full legal advice. It is for guidance only and
illustrates the law as at the published date. If in doubt, please
telephone us on 0370 270 6000.
© Browne Jacobson LLP 2017 – The information contained within
this document is and shall remain the property of Browne
Jacobson. This document may not be reproduced without the prior
consent of Browne Jacobson.

Deterrent strategies in fraud litigation, September 2017, Birmingham

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