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Thursday 21 June 2018

Undercover legal consultation: Fraudulent claimants are 'usually not pursued for costs'

  • Solicitor tells how two clients who fraudulently claimed 'didn't end up paying costs'
  • 'The nightclub is bringing you in and charging you for drinks, so on their back be it'
  • Same law firm advertising 'no win, no fee' advice - despite regulations against this
  • Insurance companies concerned about lack of punishment for fraudulent claimants
  • 'In 90pc of cases, fraudulent claimants don't end up paying costs' - leading defence barrister
  • People with genuine claims being deterred from pursuing legal action because of fraudulent claimants
  • Have you got a story about fraudulent claims? Contact amolloy@independent.ie
Amy Molloy

Amy Molloy

A solicitor providing personal injury advice said that even if a claim is fraudulent, claimants usually aren't pursued for costs.

The advice was given during an undercover consultation with a firm that is advertising 'no win, no fee' legal representation - despite the Law Society having strict regulations against this.

As can be heard in the audio below, the solicitor said:

"I've only lost two cases in ten years and that's because they were chancers with fraudulent claims [laughs] and even then they didn't go after them for costs, they usually don't," the solicitor said.

The scenario presented to the solicitor was a slip and fall in a Dublin nightclub.

Solicitor: "We’ve had a couple of slips and falls, a couple of good cases [against this club]. There was one where a girl slipped and fell and got glass in her knee and I think she got like €80,000. I didn’t actually ask you what kind of injuries you sustained?"

Reporter: "I was off work for a couple of days and I’ve had spasms in my neck"

Solicitor: "So whiplash yeah..."

The reporter said she had around seven or eight drinks and wasn't sure if there was a wet floor sign on the dance floor after it had been cleaned.

When asked if there would be a contributory negligence element because they had seen the member of staff mopping the floor and still walked over there, the solicitor said: "Of course they can [say that] but you would be saying well, I assumed when he was there mopping, he was after drying up, he wasn’t after leaving more water, so there’s ways around that as well.

"...They [defences like that]  never really wash as that’s their whole premise. You are there to dance and have a few drinks and to have a good time. They are bringing you in and charging you for the drinks so on their back be it."

The solicitor also told the reporter; "[you look injured] the way you are sitting" - despite the reporter having no actual injuries.

Two different personal injury firms said there would be a contributory negligence element and advised the reporter to bring their case to the Injuries Board instead.

The other Dublin-based firm has been advertising 'no win, no fee' legal advice, as the below images show, even though this isn't allowed by the Law Society.

'No win, no fee' means you don't have to pay legal fees to those representing you if your case is unsuccessful.

Advertising this type of representation was banned in Ireland because it constitutes "ambulance chasing".

No win no fee.PNG
amy molloy.png

A spokesperson for the Law Society of Ireland said: "The Law Society cannot pre-judge any possible breaches of regulations or make public comment on specific cases. However, we do proactively seek out regulation breaches and investigate possible breaches brought to our attention."

Independent.ie asked the solicitor in question if the legal advice given "encourages fraudulent claiming" and has not received a response.

The firm had changed their site to say 'no win, no fee fully explained' after the Law Society contacted them earlier this year and have since changed it again to include 'no win, no fee' in the hyperlink, as the image above shows.

They also did not respond to requests for comment about their advertising.

'Lack of punishment' for fraudulent claimers

Concerns about a lack of punishment for fraudulent claimants were recently raised after a €60,000 personal injuries claim by a 25-year-old Dublin home care worker was dismissed when it emerged that it had arisen out of "a contrived traffic accident".

Head of Fraud for Aviva Insurance, Rob Smyth, said after the case; "Every effort will be made to ensure we recover our costs and we will co-operate with the gardaí to ensure that anyone involved in staged accidents face criminal prosecution".

Speaking to Independent.ie, Mr Smyth said Aviva are currently investigating 1,200 cases - from this year alone - which they believe to be fraudulent.

"They certainly go largely unpunished because by and large, apart from having their cases dismissed, there is no sanction. That means there is no deterrent. 

"Where costs are awarded in our favour, we do seek to recover them despite incurring further legal costs. In many cases, those whose claims are dismissed as fraudulent don’t have the means to pay in full and are required to pay back very small amounts over many years."

Shane English BL acts for defendants in personal injury cases and has uncovered a number of exaggerated claims in the past few years.

One case was that of Rita Milinovic who was involved in a minor collision in a car park. Ms Milinovic claimed she had to give up her job as a waitress and could no longer work out in the gym.

Her case collapsed when Shane English brought her through a collection of pictures which she had posted of herself on Facebook since the accident.

They included a picture of her after having climbed to the top of Bray Head as well as bikini-clad shots of her posing at international body sculpture competitions and others exercising in a gym since the accident.

"In most cases awarding costs against them is useless because the plaintiff has no money in any event so it makes no difference to them," Mr English told Independent.ie.

"Some solicitors on behalf of insurers will pursue them and register judgments so that if they win the lottery or if they come into money, it may come against them. It can make life difficult for them, but in terms of getting your money, in 90pc of cases that never happens.

"However, insurers feel very strongly about these type of claims. They are pursuing people in more recent years in an attempt to recover money even where there may be limited prospect of actually recovering their costs."

Genuine claimants being put off

A study carried out by Liberty Insurance revealed 82pc of Irish drivers believe a 'claims culture' is more prevalent in Ireland today versus ten years ago, while 88pc think those who submit fraudulent claims should face harsher penalties.

However, legal professionals are concerned that those who fraudulently claim are deterring people with genuine injuries from claiming as they fear being tarred with the same brush.

A hotel worker told how she hasn't made insurance claims for legitimate injuries because of bogus claims made by others.

The senior employee, who has asked not to be named, told Independent.ie that she has suffered a series of accidents in her workplace.

However, she has resisted suing for damages because of how it might be viewed by others.

Describing her most recent injury the worker said: "The gas grill was faulty and it shot gas up into my face, singeing my eyebrows and eyelashes and burning my cheeks. I didn’t log the claim; I just got on with it and now use a pencil to fill in my eyebrows."

In 2016, the total amount of money awarded by the courts for personal injury claims was:

  • High Court: €147,145,000
  • Circuit Court: €17,314,830
  • District Court: €4,059,854

Have you got a story about fraudulent claims? Contact amolloy@independent.ie

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