Industry must plead fraud in a responsible manner – Carpenters Group

I attended a trial recently where an allegation of fundamental dishonesty had, quite properly, been alleged against the claimant based on the evidence disclosed throughout the litigation process.

However, upon cross-examination, it became increasingly apparent that the claimant himself believed he was injured to an extent far beyond that which he actually was – despite the plethora of medical records and reports clearly indicating otherwise.

The outcome was an award for the claimant of a significantly lower sum than he had been seeking – however, the allegation of dishonesty could not be made because the claimant held a genuine belief, unreasonable as it was, that the losses he was claiming were appropriate.

He had not, the court held, set out to deceive.

This episode struck a tone with me in terms of the dilemma the insurance industry faces when deciding whether or not to allege fraud.

For one, it is an extremely serious allegation to make. Plus, from a procedural basis, fraud allegations can lead to expensive and protracted legal battles.

Insurers and their representatives should therefore be hesitant to allege fraud on the basis of mere suspicion. Where red flags are present, thorough investigations ought to be carried out – including a forensic review of documentation and available evidence – before a positive pleading is advanced.

What certainly does not sit right with me is the thought of fraud being alleged purely as a defence in itself.

By this, I mean utilised as a tactic to discourage claimants from pursuing a claim purely because there is a personal risk surrounding an allegation of fraud.

I would hasten to add that I have not been privy to such behaviour, but I understand that it does happen. The point I wish to make is that the pleading of fraud is a powerful tool, but a tool that ought to be wielded responsibly.

There is a need to ensure that fraud is pleaded in the right circumstances and not simply used as an agent to force a party to throw in the towel through fear of the repercussions.

Of course, I accept the argument of those that would say that if an individual has done nothing wrong then they have nothing to fear, but I think the puzzle is a little more opaque than that.

For me, both sides of the dispute need to be genuine, with an ethos of promoting justice, fairness and efficiency – rather than simply promoting personal or commercial interests.