Ms Dorothea Dowling:

I have carried out an analysis of the number of cases that have been fought under the new deterrent for what are called misleading claims because fraud is very difficult to prove involving as it does the criminal burden of proof, which is beyond a reasonable doubt, whereas under the 2004 Act, this is just the balance of probabilities. From its introduction to June 2016, only 32 cases were fought by defendants and not all of them were insurance industry cases. A total of 19 cases were dismissed. There is a pretty good chance of them being dismissed if the industry pursues them but short-termism arises. I think the AA said that the industry is not really concerned about fraud as long as it can price for it because it can pass it on to policy holders. It is important to emphasise that of the 19 cases that were dismissed, 12 were what is called assessment only where the person who was being sued agreed that they caused the accident but they felt that the claim was exaggerated. I will give members an idea of the type of injuries involved. Two cases involved fractures. In one case, a man maintained he was in a wheelchair for life, video surveillance showed that this was not quite the case and the case was thrown out. In another case, a person was an amputee. That counts for four of the 19. The remainder were what are called soft tissue injuries so there is an issue. There is some very good socio-economic analysis of that. A total of 14 of those cases involved the building trade. One can understand how during a recession, the building business goes bust so soft tissue injury claims could be an alternate. I am speaking from the records of the written judgments rather than expressing a personal opinion.

In respect of care versus cash, as a Master of Laws, I would say that this would probably be unconstitutional and would also not be compliant with the EU directive on motor insurance, which says that victims in motor insurance claims are to be dealt with in compensation terms under national law in no less favourable terms than any other injury. I am sure the Attorney General could answer that question. I am also counselling against something completely different which might be very disruptive and create volatility and uncertainty when the solutions might be far simpler.