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Successful appeal against a decision to strike out ‘concerns’ pleaded in a Defence that did not advance a positive case of fraud.

24th April 2015

James Henry (instructed by Karen Mann of Greenwoods) represented Sabre Insurance in its successful appeal against a decision to strike out elements of a Defence that put to the Claimant to proof against the evidential backdrop of the insurer’s concerns surrounding a road traffic accident claim.

The Claimant alleged that he was involved in a genuine road traffic accident caused by the First Defendant’s negligence.  The First Defendant failed to cooperate with his insurer and could not be traced.  The insurer did not have sufficiently cogent evidence to make an allegation of fraud as against the Claimant, but it did have a large artillery of information that it said would undermine the claim to the extent that the Claimant could not prove his case. The insurer’s Defence did not make an allegation fraud, but did rely on several particular concerns in support of its contention that the Claimant could not prove his case.

The Claimant applied to strike out parts of the insurer’s Defence on the basis that it amounted to a pleading of fraud by insinuation (placing reliance on the obiter comments of Davis LJ in Hussain v. Amin [2012] EWCA Civ 1456).  The District Judge at first instance agreed and struck out parts of the Defence which he thought amounted to a pleading of fraud.

The insurer appealed on the ground that the District Judge had fallen into error by characterising the Defence as one that pleaded fraud.  It was argued that the Defence was properly pleaded in accordance with the well-established line of case law (including Kearsley v. Klarfeld [2005] EWCA Civ 1510 and Francis v. Wells [2007] EWCA Civ 1350) which establish that in this type of case it is not necessary for the defence to make a substantive allegation of fraud or fabrication, but it is sufficient to set out the detailed facts from which the court would be invited to draw the inference that the claimant has not suffered the injuries or damage alleged.

His Honour Judge Jeremy Richardson QC allowed the appeal, relying on the Judgment of Cranston J in Ahmed v. Lalik (1) Cooperative (2) [2015] EWHC 651 and emphasising that it is necessary for parties to put their cards on the table by way of pleading, the artillery and ammunition they seek to use.

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James Henry

James Henry
Year of Call: 2010