Reporting Exaggerated Claims

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Sinn Féin TD Pearse Doherty; Deputy Commissioner John Twomey, Chief Superintendent Pat Lordan at the finance committee on July 9 last

Last night, Taoiseach Leo Varadkar released a statement stating Maria Bailey “signed an affidavit (linked to a personal injuries summons) that over-stated the impact of her injuries on her running”.

He also stated there were “inconsistencies” in her account of events and that she made “numerous errors of judgement” in her handling of the matter – even after she withdrew her claim.

In a separate statement on foot of the unpublished report by David Kennedy SC, Ms Bailey said:

“I note that the report by David Kennedy SC has found that this was not a fraudulent claim, and that it would be unlikely that a court would conclude that there was any attempt to mislead on my part. I made no attempt to mislead.”

Earlier this month, Deputy Commissioner John Twomey, Chief Superintendent Pat Lordan and Andrew McLindon, director of communications at An Garda Síochána attended a meeting of the Joint Committee on Finance, Public Expenditure and Reform.

During the meeting, Sinn Féin TD Pearse Doherty asked those present about the difference between fraud and exaggerated claims.

Mr Lordan said he believes there is no difference and also went on to say that claims believed to be exaggerated and defined as fraud should, by law, be reported to the gardai by people in the know.

He also confirmed that to not report it is a criminal offence.

They had the following exchange:

Pearse Doherty: “Can I just take the witnesses through a couple of points for clarification? On fraud, what is the difference between fraud and exaggerated claims, a term that is being used now, or are exaggerated claims fraud?”

Pat Lordan:I see no difference between an exaggerated claim and fraud. The view of the insurance industry is the same. This is not right across the board, where some parts of the insurance industry may say it was a mistake or someone was trying to claim little bit more, by accident. My view is that if one has a claim for €100 worth of water damage, and change it up to €1,000, that is fraud.”

Doherty:If a person was in a car accident and claimed that he or she was injured beyond what the person was, would that be seen as fraud?”

Lordan: Absolutely, but the difficulty we have with both of those scenarios is proving it. Where the householder has an invoice or receipt for €1,000, it is quite difficult then to show that it is fraud.”

Doherty: “Yes.”

Lordan: “Likewise, with a lot of these fraudulent claims, they represent minor enough injuries, like whiplash, for example. It is quite difficult for us to prove, when we investigate such a case, that the person does not have whiplash.”

Doherty: “The guidance on reported suspected fraudulent insurance claims within An Garda Síochána’s code of practice with the insurance industry states “an offence of deception relating to exaggerated claims takes place” and it goes on to say where it takes place and should be reported. Should claims that are believed to be exaggerated and which are defined as fraud be reported?

Lordan: “Likewise, with a lot of these fraudulent claims, they represent minor enough injuries, like whiplash, for example. It is quite difficult for us to prove, when we investigate such a case, that the person does not have whiplash.”

Doherty: “The guidance on reported suspected fraudulent insurance claims within An Garda Síochána’s code of practice with the insurance industry states “an offence of deception relating to exaggerated claims takes place” and it goes on to say where it takes place and should be reported. Should claims that are believed to be exaggerated and which are defined as fraud be reported?

Lordan:Absolutely, yes.”

Doherty: “Is Mr Lordan familiar with section 19 of the Criminal Justice Act 2011 on disclosure?”

Lordan: “I am, yes.”

Doherty: “What onus does that place on me or on any other person, if I am aware of a fraudulent claim, because fraud is one of the relevant categories in that legislation?”

Lordan: There is an onus on the person to report it, if the person knows that the information that he or she has can assist An Garda Síochána in an investigation, in showing that somebody else in the room committed or carried out an act of fraud. There is a list of offences covered by it.”

Doherty:What is the position if I do not report it?

Lordan: “There can be an offence.”

Doherty:Is it a criminal offence?

Lordan:It is.”

Doherty: “This has a maximum potential prison term of five years.”

Lordan: “My own view on this – I presume the Deputy is talking in particular about an insurance company here – is that if one is an insurance company or bank and wants to report a fraud or crime, one should report it in the normal way that any crime should be reported, other than relying on the section 19 report.”

Doherty: “Section 19 of the Criminal Justice Act makes it a criminal offence for the insurance industry and the entity – including possibly the person but definitely the entity – not to report an issue of fraud.”

Lordan: “That is correct.”

Read the debate in full here

Earlier: Where It Stops, Nobody Knows

Yesterday: “There Have Been Inconsistencies In Deputy Bailey’s Account of Events”

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31 thoughts on “Reporting Exaggerated Claims

  1. eoin

    Given that Leo KNOWS Maria made an exaggerated claim, because he sacked her from the role of chair of the housing committee, is Leo now facing a 5 year stretch in Mountjoy?

    http://www.irishstatutebook.ie/eli/2011/act/22/section/19/enacted/en/html

    “19.— (1) A person shall be guilty of an offence if he or she has information which he or she knows or believes might be of material assistance in—

    (a) preventing the commission by any other person of a relevant offence, or

    (b) securing the apprehension, prosecution or conviction of any other person for a relevant offence,

    and fails without reasonable excuse to disclose that information as soon as it is practicable to do so to a member of the Garda Síochána.

    (2) A person guilty of an offence under this section shall be liable—

    (a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

    (b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.”

  2. GiggidyGoo

    So, now that Varadkar has the information, will he now proceed to report the ‘exaggerated claim’ AKA Fraud (going by the answers above) to the Gardai in the case of Maria Bailey. Perhaps in the case of Alan Farrell too?

  3. Listrade

    No. We need to stop this. There is a difference and a very big one. Fraud is premeditated. It involves staging an “accident”, that is the criminal offence. Exaggerated claims are different and are dealt with by the courts (up to dismissing the claim).

    There is a craptonne of precedence on practically every single word of this section of the Civil Liability and Courts Act 2004.

    If she had gone to club and staged an accident and initiated a claim, that would be fraud, that would be a matter for the Gardai. She had an accident, it seems likely that it was a no-fault accident (or she was largely to blame for her own misfortune), however, she still has the right to claim (though not to succeed in that claim). The issue is that it she appears to have exaggerated the extent of her injury/the injury’s impact. That is different. It is dealt with by Section 26 of the Act.

    Depending on meeting the criteria of 21 cases (that I’m aware of) on this section, if the exaggerated nature of the injuries had been made in the court, then the defendant could have asked the court to dismiss the whole claim. It can be that one bit of bad evidence can taint the whole evidence. Even then, there is wriggle room for judges to still allow the case to proceed.

    None of the above should be seen as excusing what she did, the hypocrisy of FG’s statements on welfare and PI claims and now two TDs exaggerating their injuries… but when jumping on the bandwagon, make sure it’s the right one.

    1. Spaghetti Hoop

      So, a grown woman, inebriated or not, with two bottles in her hand and reaching for a camera, while sitting on a swing which moves all over the place and with no grip on the ropes, is a “no-fault accident”?

      1. Listrade

        No, but it’s a nice neutral way of saying it without the benefit of a judge’s decision on liability.

    2. martco

      thanks for that Listrade
      can you tell me technically why Bailey is not being reported to the Gardai here? as in, is there nothing to report? is this a loophole?

      like I would have thought myself without a stick of legal knowledge that a person knowing of someone’s machinations to attempt to perpetrate (ok now I think I understand the law interpretation of “fraud”) extract a large amount of money by deception —> ordinarily €500 but I jack up the injury €15k…..=€14,500 I’m not entitled to and have therefore received by deception

      btw I get where you’re coming from but I wouldn’t reduce people’s feeling on the subject to “bandwagonning” – there’s a lot of really pissed-off people out there at this…her attempted deception, Varadkars attempted whitewashing…all coming from a political construct that likes to lecture ordinary people on do’s & dont’s

      1. Listrade

        No loophole. Anyone at any stage could have reported it to the Superintendent of the relevant district. It isn’t that common a practice though and it tends to only be fraudulent claims that are reported.

        Personal injuries can be more difficult. Say my house is broken into and my TV is stolen, but I also say my brand new €4K gaming rig PC was also stolen as well as some priceless jewellery and that Picasso we’d had in the family for years. It’s a bit easier to prove exaggeration in those cases as I either had them or didn’t. Gardai wouldn’t have too much trouble investigating.

        Exaggeration of an injury can be different. She was injured and did need medical treatment. What she lied about was the impact that had on her life. That’s different to saying I broke my leg, and I hadn’t.

        Those types of exaggerations/lies tend to be left to the courts. In my experience, you can stick a PI on someone, even get stuff off their Facebook that casts a doubt as to the extent of the injury and you let them make the claim in front of the court (rather than just pre trial stuff) and then hit them with your counter evidence. Then you put in your motion to dismiss on Section 26. Depending on the judge they may feel that all of that person’s evidence is now tainted, or they may take out the exaggeration and still award damages. The latter tends to be if there is a legitimate claim.

        So it could have been reported to the Gardai, but doubtful they would have acted and those types of exaggerations tend to be left to the court. You let them make the claim in court, then catch them in the lie.

        1. Barry the Hatchet

          +1 for your excellent comments on this, Listrade.

          In my experience, a major stumbling block to reducing the volume of exaggerated claims is judges’ refusal to apply S26 properly. It’s close to impossible to get a claim thrown out for exaggeration.

          1. Listrade

            We’ve 6 criteria now for a Section 26 decision, but it’s still too subjective and down the the judge. But the blame there is with some of the self-insured bodies (like CIE) who fight every claim and on everything they can. They effectively wanted a section 26 ruling (and case dismissed) if someone added a cent onto their loss of earnings. It pissed off the judges, especially when it appeared a legitimate claim and against “justice”. So we got an interpretation that is probably pro plaintiff more than defendant and you only go for a Section 26 in the most egregious cases.

            Also not helped by judges in their decisions. Even with some clearly fraudulent claims, ones where the person is caught lying, ones where the judge rules against them, they never state the person is lying or even suggest at fraud in their summary. That would be a help, instead it’s vague terms and “found the defendant more believable”.

    3. GiggidyGoo

      Hi Listrade

      From her interview with SOR ‘Bailey: “No, sorry yes, it is in the claim and that is wrong because, and I’ve instructed my, and this, you see, this is where it’s dangerous – when you cross legal documents at an early stage, the plaintiff has every right to amend those particulars prior to it going to a judge and a judge can adjudicate in due course on that.”
      Is that correct? If not then has she attempted fraud?

      1. Listrade

        It isn’t automatically fraud to change statements or details. It could be the case that the initial medical report for the Injuries Board was accurate at the time, but the injury/health issue has become worse after a time. an issue wasn’t apparent at the time or a minor injury could have been made worse while going about your normal life (e.g. you’re a runner, you run, you have a back injury and you rest. Doc gives you all clear and you start running again and injury comes back and is even worse).

        Lots of legitimate reasons to change information. However, the particulars of the claim as in how the accident happened, when it happened and reasons for negligence, while they can be amended, the courts can frown upon too many amendments.

        1. GiggidyGoo

          The issue as regards how the accident happened isn’t the issue though. It is the exaggeration in a sworn document as to the effects.

          1. Listrade

            It is a crime. However, it is one that is usually left to the judge hearing the case rather than involving the Gardai. While technically perjury, to be honest, it is better to let them repeat the falsehood in front of a judge. You can (as she has) claim all sorts of mistakes with affidavits. I’ve signed a few in my time and all are prepared by solicitors, not all have been accurate as to my actual statement. Luckily I’ve caught it and amended it. But I can “see” an excuse of not understanding or reading it properly and saying that it wasn’t your words. Much better to let them repeat it under oath in court and then offer the conflicting evidence.

            However, it reflects she is dishonest and attempted to defraud. It could still be reported to the gardai.

      2. eoin

        “when you cross legal documents at an early stage, the plaintiff has every right to amend those particulars prior to it going to a judge”

        Did we ever find out when the original affidavit – which exaggerated the effect the incident had on her running – was filed. And when was the correcting affidavit filed.

    4. Frank

      As a legal definition between insurance ‘fraud’ (premeditated crime) and ‘exaggerated claim’ (post facto crime) this is very helpful in how this would tease out in court.

      However, the greater question remains.
      Is this the caliber of individual that should be in public office?

      In my opinion this individual is not an ‘out and out’ criminal, plotting criminal activity. Rather, on opportunistic exaggerated truth teller or ‘liar’ as they were called in the old days.

  4. V

    Unless it can be established that Ms Bailey planned and staged the incident she attempted to extract compensation from, I don’t know how this is a matter for AGS

    And the more I think about it
    The more I’m convinced this is a Fitness and Probity breech
    either by FGs own policy or the Houses of the Oireachtas
    Or both

    She knowingly swore a false statement
    and did it for financial gain

    That’s simply not on in any F & P regime

      1. V

        It depends on the adopted Policy
        There has to be some Fitness and Probity standards required by the Clerk of the Dáil from members therein

        The more I think about it the more I’m convinced FG must have one too

        1. Cian

          Do you actually know if there is? And if there is what the punishment for breaking them is.

          Because it sounds unconstitutional to prevent someone acting as a TD once they are lawfully elected as a TD. There was a bankruptcy thing – but that got revoked just before it looked like it might be needed.

          1. V

            Jesus Christ
            I know exactly who you are now

            I DON’T KNOW
            I have been asking all day
            If the Houses of the Oireachtas
            And or
            The Fine Gael Party
            Have Fitness and Probity Policies

          2. Cian

            You wrote:
            And the more I think about it
            The more I’m convinced this is a Fitness and Probity breech
            either by FGs own policy or the Houses of the Oireachtas
            Or both

            and

            There has to be some Fitness and Probity standards required by the Clerk of the Dáil from members therein

            The more I think about it the more I’m convinced FG must have one too

            these are statements…. not questions!

  5. Pip

    That’s excellent, Listrade.
    There’s a lot of conflation and waffle going around about the two categories.
    No doubt many exaggerated claims are settled or paid out after a legal judgement, driving up premiums.
    The relatively small number of actual fraudulent claims – which seemed to surprise people – is explained by your reasoning above.

  6. Joxer

    Listrade….you have taken the pitchfork out of my hand with your reasoned commentary, thank you

  7. Termagant

    Regardless of whether or not any exaggeration was committed, whether her exaggeration was intentional, whether intentional exaggeration constitutes fraud

    we should drive her into the sea with sticks and torches anyway, on principle

Comments are closed.

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