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Is there fraud in liability claims? Footballer jailed after team photo reveals lie over injury The Daily Telegraph / 7th December 2005 A footballer who hurt his knee in a tackle then claimed he had tripped on a faulty pavement was jailed for 14 days yesterday for contempt of court. Matthew Hughes, 26, of Pontlottyn, Caerphilly, South Wales, also faces a legal bill of £32,000 in what is thought to be the first case of its kind. Two friends who supported his fraudulent compensation claim against Caerphilly council - Christian Rowlands, 34, and Jamie Verity, 26 - were each fined £1,500 for contempt. All three were found to have made false "statements of truth" - the modern equivalent of affidavits - in proceedings against the council. Mr Justice Silber gave a warning that people who made false witness statements to bring fraudulent claims could in future expect "substantially longer" sentences than he imposed on Hughes.
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Agenda for change Governments Response to Fraud -Fraud Act -Fraud Review - National Strategic Fraud Authority (Reporting Centre) -Compensation Act Insurance Industry Response -Insurance Fraud Bureau -ABI Anti Fraud Committee - ABI publication of value of detected claims (July 2007) * 2004 – uncovered £200m
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Fraud & The Fraud Act Historically a range of criminal offences at common law and statute (Theft Acts 1968 –1996). No translation to civil law and closest principles were Fraudulent Misrepresentation & Tort of Deceit Fraud Act 2006 Simplified since the introduction of the Fraud Act 2006 (effective 15 th January 2007) Now comprises: - Fraud by false representation (section 2) - Fraud by failing to disclose information (section 3) - Fraud by abusing a position of trust (section 4) Summary conviction: fine £5000 – 12 months imprisonment On Indictment : Fine Unlimited – 10 years imprisonment
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DEFENCE: To plead or not to plead The evidential burden: The reversed burden of proof Hornal v Neuberger Products Ltd 1957 Standard of proof: Shifting between the civil and criminal The more serious the allegation the higher the standard Hornal v Neuberger Products Ltd 1957 Severe consequences for unsubstantiated allegations Cooper v P & O Stena Line Ltd 1999 Professional Obligations : Codes of Conduct Medcalf v Mardell AC 2003 CPR Rules : Part 16 and ‘Queens Bench Guide‘
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Challenges Pre Action Protocol Current Position – Documentary evidence/timescales Proposed Reforms Increase in fast track limit Strict time limits for admissions - 15 & 30 days
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Investigation Overview Desktops Documentation Field Investigations Expert Investigations/Instructions Miscellaneous Investigations Surveillance CASEEVIDENCECASEEVIDENCE
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Investigative Tools - Legal Disclosure – CPR 31 A: Pre-Action Disclosure B: Standard Disclosure C: Specific and Non-Party Disclosure CPR 18 and 35 ID Evidence/Proof of Residency - POCA
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Witness Statements/Evidence Courts power to control evidence – CPR 32 -Importance of getting it right -Late service What evidence should be served and when Witness summaries – tactical use of False statements and contempt of court proceedings
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Intelligence Tools Human Sources Open Sources Access Restricted Sources Organisations Law Society/Bar Council Claims Management Regulation and Monitoring and Compliance Unit – Ministry of Justice Security Industries Authority
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Expert Evidence Types of evidence - Forensic Engineers -Accident reconstruction experts -Handwriting experts -Medical experts -Forensic accountancy -Mobile phone forensic experts -CCTV analysis -Computer forensic experts – data recovery/mining Correct Procedure - when and how to disclose - permission of the court
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Obtaining evidence – admissibility R v Khan (Sultan) (1997) Jones v University of Warwick (2003) Morrison v Avecot Hardware Plc (2003) Painting v Oxford University (2005) Conduct Rules
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Question time…..
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