“Rough justice”, a term with which we are all now very familiar, does not begin to describe the erosion in the standard of proof required for Claimants to recover the cost of private treatment in cases to which the Pre-Action Protocol for Low Value PI Claims in RTAs or the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims (hereinafter ‘the Protocols’) apply. The claims for treatment can range from the routine physiotherapy and CBT one regularly sees to the more questionable osteopathy, hydrotherapy and acupuncture to, even in cases involving physical injury only, the particularly dubious: mindfulness and complimentary therapy. It seems that if the medical report at stage 3 loosely describes the treatment as reasonable and there is an invoice to support the sum claimed, then it is nodded through. It’s rough, but it’s cheap in the fixed costs regime, isn’t it?
There is, therefore, a growing concern that the “rough justice” of the Protocols means that no proper consideration is being given to claims for treatment costs that either do not take place, or are exaggerated to some degree. This is the tip of what might be a particularly large iceberg.
There are considerable consequences for those who bring false claims that we have considered in this Newsletter before (“Section 57: A Powerful Weapon”, by Zoe Earnshaw (https://deanscourt.co.uk/docs/dcc-civil-insurance-fraud-newsletter.pdf)). However, there are also repercussions for those professional advisers who pursue dubious claims in the name of a Claimant. In Brown v Haven Insurance Company Ltd, unreported, 7 January 2016, Leeds County Court, the Claimant pursued a claim for £880 physiotherapy charges. The Claimant had not undergone the physiotherapy, as the claim was for prospective treatment. At trial, the Claimant stated that he was no longer suffering from symptoms, and that he had no wish to pursue that part of his claim. The District Judge dismissed the claim in its entirety and ordered the Claimant’s solicitors to show cause as to why they should not pay some or all of the costs wasted. The Claimant’s solicitor, who had signed the schedule of damages when she did not have specific instructions to do so, was ordered to pay the wasted costs of the claim for physiotherapy charges on the indemnity basis.
Submissions on the stage 2 settlement pack are crucial in monitoring and combatting potential treatment fraud. Invoices should routinely contain the name of the therapist as well as dates of sessions and, if applicable, the HCPC number of the therapist. If the invoice does not contain that information then it is important that it is requested at stage 2. The aim of this is to assist with the monitoring of how frequently the same names appear on invoices, and to enable a proper analysis of the chronology. The number of sessions provided (and on what dates) may not fit with other dates in the timeline. Patterns can be seen to develop on a broader level, and a positive decision can be taken to transfer a group of cases to Part 7 if necessary.
It is also important to challenge at stage 2 whether the treatment claimed took place in person or over the telephone and, if in person, the address at which the sessions were undertaken. As the Courts become increasingly vigilant about this issue, it cannot be said that such a requirement from the Claimant is unreasonable, even within the confines of the Protocols. It is trite law that a witness statement from the Claimant is an evidential tool available to him in the Protocols. Albeit paragraph 7.11 of the RTA Protocol is sceptical as to the need for a statement, they are now seen so regularly in hire claims that this cannot be deemed an overly onerous request. The simple and effective way to challenge the invoice is to require a statement confirming no more than whether the treatment was in person, the dates of the sessions and the address at which they took place. This information allows further investigation into addresses to be undertaken in order to monitor any discrepancies in what is alleged. Of course, the statement of truth carries the necessary consequences should any foul play be detected.
The now well-rehearsed guidance of Mr Justice Spencer at paragraph 44 of Molodi v Cambridge Vibration Maintenance Service  EWHC 1288 (dealing with what the County Court would normally expect in LVI cases from a Claimant) includes the following: ‘to have sought appropriate treatment in the form of physiotherapy (without the prompting or intervention of solicitors)’. It is to be expected, therefore, that not only will the nudging of claimants towards treatment become an increasing trend, but the temptation towards the production of “rough” or entirely fictitious invoices may become too great. It is important that these are not simply nodded through at stage 2.
The successful challenge of the more unusual forms of treatment also requires a proper challenge by entry at stage 2. The Defendant must take a point on the medical qualifications of the provider of treatment if appropriate, and should challenge any lack of specificity about the need for the treatment in the medical report. The more information that can be obtained about the nature, extent and method of treatment, the more extensive the investigations into the genuineness of the claims can be.
Whether the fixed costs regime of the Protocols is cost-effective for insurer clients or not depends entirely on what is passing through a system that does not permit detailed consideration of claims made. There is no cost-saving if false claims are routinely made and never challenged. The certainty is that until further analysis is applied to potential treatment fraud, we simply do not know the extent of what is happening.