There have been instances where claims for losses were made, likely occurred, but were not legally recoverable.. For example:-
- A claim for the stress and inconvenience caused by the negligence and the subsequent litigation. Such damages are usually only awarded where there was a contractual liability to avoid such stress and inconvenience, i.e. where the very object of the contract was to provide pleasure – see para 101 of Farley v Skinner [2001] UKHL 49
- Travel expenses to the medico-legal appointment, which flows as a result of the litigation and not the negligence – see para 82 of Tagg v Countess of Chester Hospital Foundation NHS Trust [2007] EWHC 509 (QB)
- Time spent by family members or friends sat with the Claimant in hospital, which does not go beyond – see para 85 of Tagg
However, it is wholly different when Claimants include losses that may not have been incurred, and most likely included at the whim of the fee earner. Quite often, I see pleadings include a head of loss alongs the line of the following:-
“The Claimant claims £10 for undocumented ‘out of pocket’ expenses such as telephone calls, postage costs and other miscellaneous expenses”.
The problem for the Claimant is that they have not incurred these expenses and signed a statement of truth saying they have. Usually because they have not incurred direct telephone costs, postage and, most importantly, those costs (if they were incurred) were most likely to be a result of the litigation (i.e. communicating with their Solicitors) and not the accident.
The Courts take signed statements of truth very seriously, irrespective of whether it is signed by the Claimant themselves or their legal representatives (see Molodi v Cambridge Vibration Maintenance Service [2018] EWHC 1288 (QB)).
I once represented a Claimant at an RTA where LVI was alleged. I took instructions and the Claimant agreed to not pursue the claim for telephone and postage costs, after he confirmed he did not incur these because he had unlimited minutes on his phone and never posted a single document.
My opponent chose not to cross-examine him on the point, but the Judge did question it. I did remind the Judge that the head of loss was not being pursued, but the Judge still wanted to ask him about it. Naturally, the Claimant explained these were not losses he was aware of and said that his Solicitors had included them. The Judge was extremely critical of both the Solicitors’ conduct, but also of the Claimant for signing a statement of truth about something he knew not to be true.
It does not matter even if, by the time of the trial, the Claimant has abandoned the head of loss. This principle has been seen in Roberts v Kesson [2020] EWHC 521 (QB). The Defendant insurer appealed a decision of the Recorder’s first instance decision to allow damages and not make a finding of fundamental dishonesty.
The Claimant sought damages for his car’s value, storage costs, and high taxi hire charges. Initially, he claimed he sold his car for salvage but later admitted it was untrue, revealing the car was roadworthy. The Recorder awarded general damages for PSLA, rejected special damages due to insufficient evidence. Counsel for the Defendant insurer had argued that the Claimant was intentionally hiding documents, warranting an adverse inference against him.
Jay J found that no proper explanation has been given for the falsities in his evidence. He disagreed with the Recorder’s assessment of dishonesty and found that the evidence indicated that the Claimant would have continued his false claims if not for the Insurers’ intervention. He therefore found that there was dishonesty that fundamentally went to the roots of the claim and set aside QOCS.
Signing a statement of truth in civil proceedings while knowingly including false content carries a significant risk due to the consequences that follow. There is simply no reason to include generic losses which the Claimant may not have incurred. The simple fix is to stop doing it. Do not place your client in any unnecessary jepody.
Information
Alec Hancock is a CILEX Advocate and Litigator in Civil Proceedings. CILEX Regulation is his regulator. He can appear in open Court in all County Court matters save for family proceedings.
Alec Hancock conducts his advocacy through AJH Advocacy Limited. The Bar Standards Board is the regulator. Alec will attend any Court in England and Wales. He does not charge extra for:-
- Truro County Court
- Bodmin County Court
- Plymouth County Court
- Exeter County Court
- Torquay & Newton Abbot County Court
- Taunton County Court
- Barnstaple County Court
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