English barrister Gordon Exall, he of the Civil Litigation Brief who is constantly informative as @CivilLitTweet on Twitter, reports on an interesting finding of fundamental dishonesty in a claim about an alleged motor accident. The judgment is Wise -v- Hegarty & Alpha Insurance (9th July 2019) and Gordon Exall’s blog post is here.
Craig Ball, former trial lawyer and doyen of US forensic experts, is rightly fond of saying that this is the “greatest time ever to be a litigator” in terms of the evidence which modern devices bring us. I interviewed him here on how mobile data increases lawyers’ ability to uncover the truth. By “mobile data” one generally means data created, collected and disseminated by the kind of mobile devices which most of us carry around with us. Years ago, however, I did a panel with Craig Ball on this subject in the US, and he gave us an illustration of a motor accident represented by two moving dots on a map. The data in the car (whether it was a property of the car or its passengers) would, he said, provide evidence about accidents and their causes.
The Wise v Hegarty judgment brings that to us in carefully-weighed judicial terms. Skipping the detail, the accident alleged by the claimant never happened. Neither party was in court, but a telematics expert (“telematics” is a neologism which merges telecommunications and infomatics) gave evidence drawn from one of those “black box” devices which are fitted in many cars as a requirement of the driver’s insurers. In the judge’s words, the car which allegedly caused the alleged accident had:
a box fitted to it which provided information about where the vehicle was going, where it was parked, the speed at which it was travelling and whether or not it had been in any untoward incidents where G forces had been applied to it.
Reviewing the expert’s evidence (he was engagingly named Mr Street), the judge found that the car had been parked at the alleged time of the accident and had not been involved in any “untoward incident” at the time and place alleged. No evidence was required from either party once the judge was satisfied that the device was accurate.
That was not all for those of us interested in the wider topic of discovery / disclosure. Social media evidence suggested the possibility of a conspiracy between the two drivers, expressed thus by the judge
There are significant Facebook and social media links between the occupants of the Claimant’s vehicle, including the Claimant herself, and the Defendant. They are not direct links but there are a considerable number of linked individuals between all four participants. [T]those links add weight to the suggestion from the Second Defendant that there has been a fraudulent conspiracy here to invent the circumstances of the accident as such a conspiracy is more likely to be agreed between people who know each other or have common friends.
So, a double hit here for those of us who suggest that lawyers must consider both electronic data and social media material when collecting evidence. There are several judgments on one or the other. This one brings us both in one easily-digested package.