Eady: Disclosure application was a fishing exercise
Solicitors for leading insurers have been accused of data protection breaches in collating evidence about the way a North London firm pursued personal injury claims, it has emerged.
National firm DWF said the claim was an attempt by Ersan to undermine its ability to use the evidence on behalf of its clients.
It came to light in an interlocutory ruling by Mrs Justice Eady yesterday.
Back in 2021, DWF’s then head of organised fraud, James Stevens, created a witness statement (referred to as ‘JS1’) which was used to plead fundamental dishonesty in five low-value road traffic claims where Ersan acted for the claimants.
It analysed 372 claims submitted by the firm, which he said showed that 95% contained an allegation of psychological injuries, 67% of claimants were recommended for further psychological examination, and 68% of claimants served a psychological or psychiatric report.
Further, all 207 reports provided by a particular doctor diagnosed a recognised psychiatric condition, with two-thirds of them estimating a recovery period of two years or longer.
In a second statement, Mr Stevens said the data, on its face, “strongly indicates that all of the claims have been cynically managed so as to contrive an outcome whereby in every case, and irrespective of the true circumstances of that case, the claimant is presenting a claim that they have suffered psychiatric harm as a result of the relevant index event”.
The claimants sought to debar reliance on JS1 on the basis it amounted to quasi-expert evidence that was inadmissible and/or unreliable, an application rejected by Her Honour Judge Backhouse.
Mr Justice Freedman upheld this decision in 2022 but stressed he was not saying the evidence proved dishonesty on the part of Ersan & Co.
In a later order from HHJ Backhouse in one of the cases, the recitals recorded an undertaking from Ersan & Co not to make further applications to debar defendants relying on JS1.
The current proceedings were issued in October 2023, initially with 137 claimants; all but three have since been discontinued.
It was agreed that the data referred to in JS1 included the personal data of the three claimants, including health data such as would amount to a special category of personal data for the purposes of the GDPR. The claimants’ consent was not sought before it was processed by DWF.
The claimants contend that, in breach of GDPR, the defendant processed more personal data than was necessary for the original purposes for which it was collected.
DWF argues that the case breaches the undertaking, is a collateral attack or bid to circumvent the earlier decisions, and is an attempt by Ersan & Co “to achieve the same ends (the undermining of the defendant’s, and its insurer clients’, ability to rely on JS1) via a different claim between different parties”.
In her ruling, Eady J refused the claimants’ application for specific disclosure under 10 different heads, finding most of the documents sought either subject to privilege or not relevant to the issues.
She described one of the requests as “a fishing expedition, apparently designed to see what other material might be available to cast questions as to the reliability of JS1”.
But she granted DWF’s application to exclude multiple parts of an Ersan solicitor’s witness statement for various reasons, finding that some were legal submissions and others were not relevant.
The statement made a number of serious allegations against DWF, including the suggestion that its use of JS1 “appears to be part of a calculated strategy by insurers and DWF to undermine the fairness of court proceedings” and that the data was “partial” and cherry picked.
Excluding these, Eady J said these were not allegations raised by the claimants’ pleaded case.
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