Some defendant solicitors are filing dodgy evidence on the cost of vehicle hire in disputed car accident claims, it has been alleged.
An analysis of 196 witness statements made by a number of different ‘rate experts’ between June and October this year said the honesty of the evidence was open to question in 61% of cases.
It was conducted for hire car provider Accident Exchange, which was behind the long-running legal battle that exposed the unreliability of rental rates – known as basic hire rates – provided to defendants by Autofocus to reduce the credit hire costs sought by claimants. Autofocus collapsed as a result.
The 110-page report was written by Steve Evans, chief executive of Accident Exchange’s parent company and chairman of trade body Credit Hire Organisation.
He found that in 23% of cases investigated, critical elements relating to the basic hire rate evidence served “were actively supressed with the likelihood that, as a result, the innocent motorist would have been denied 50% of the true value of his or her claim”.
In 42% of cases, the evidence relied on information purportedly obtained by a telephone call made by the rate expert but fewer than 5% of call recordings were made available by the defendant solicitor, “three of whom seemed particularly determined not to allow the recordings to be scrutinised at all”.
Mr Evans found that where the recordings were made available, “a check to determine whether the witness statements that followed the calls were faithful reproductions of the telephone call found that, in many cases, they were not”.
The research claimed that in a number of cases, “a casual review of the evidence by the defendant solicitor would have identified that the evidence commissioned was either dishonest, or designed or likely to mislead”.
It further said that in 88% of cases where paralegals employed by defendant solicitors provided evidence of basic hire rates, it was likely to mislead the court and unfairly prejudice the claimant, “probably because of the inexperience of the witness producing the evidence, even if it was not intended to mislead”.
The report said that the practice of a solicitor giving evidence on behalf of their client in a litigated matter was a “clear conflict” with Solicitors Regulation Authority guidance on avoiding a conflict between the duty to the client and the duty to the court.
Mr Evans said: “Solicitors have a clear and unarguable obligation to the court. They have to ensure that evidence they put in front of a judge is honest and truthful especially when they have commissioned and paid for the evidence.
“The investigation suggests that, in the majority of cases, they have either performed no meaningful check as to whether the evidence was wholly and completely honest or they are reckless as to whether it is.
“In too many cases, the evidence was so tainted that it was highly likely to mislead the trial judge and deny the innocent motorist justice, exactly the situation we saw with Autofocus.”
He added: “In 2009, the post mortem following the Autofocus fraud showed the same pattern of behaviour. Then, solicitors claimed they could never have imagined the deceit being perpetrated in the name of their insurer clients. Six years later, they need to reflect on the lessons learned, recognise that their primary obligation is to the court and take ownership of the ‘paid for’ evidence they are staking their insurer client’s reputations on.”
The fall-out from the Autofocus case continues, with further litigation underway against three firms of solicitors, three former or current employees of those solicitors and two former directors of Autofocus for the recovery of damages exceeding £125m for their part in an alleged unlawful means conspiracy, as well as a bid to commit seven former Autofocus employees for contempt.