Further information
Thank you for those insightful comments. I regret that my query may have become rather obscure as I tried to ensure that the case could not be identified. I apologise for my delay in replying to you but I did not receive the usual automatic e-mail to notify me that your comment had been added.
The out-of-pocket victim was actually the Claimant in the case and the “insured”, as I had described him, was the Defendant. My own main role was to apply my professional skills to discrediting, one after another, the sequence of falsehoods on which the Defendant tried to rely.
The evidence for my belief that the Defendant deceived his legal expenses insurer is not privileged. It came inter alia from disclosure and inspection during the court case, from a subject access request to the insurance company, and from a confirmation by the relevant professional body that the report’s author was not a member. The subject access request confirmed that the insurer had requested the report and had then relied on it to grant indemnity to the Defendant.
I described the report as bogus because it was not written until about five months after the site visit to which it referred, it did not contain any of the supporting material expected of a professional report, the author did not understand the basics of what he was attempting to do, he did not have the necessary documents and he did not deploy the equipment required to make accurate measurements. The “deceptive” supporting document was a photograph that the Defendant (aka the insured) added to the report. This photograph was taken by the Defendant himself long after the events that had prompted the dispute by which time the evidence of his damage was no longer visible. It is quite possible that the author of the report was not aware of the use to which the report would be put but the Defendant was aware. The report induced the insurer to pay the costs of the solicitor whom the Defendant had instructed some months before.
The entire fifty thousand pound cover available from the insurer was exhausted by payments to the Defendant’s solicitor during the case. Thus, the Defendant received a benefit of that amount spread over a period of several years. There is also the further probability of fraud by failing to disclose information in that the Defendant’s solicitor does not appear to have notified the insurer when his prospects of success fell below the required 51%.
I agree that the financial losses suffered by the Claimant will not be relevant to a Suspicious Activity Report.
Information received in "privileged circumstances"
Hi
We have to be careful in our choice of words here!
The issue is not whether the information is "privileged". This issue is whether the information came to you in "privileged circumstances", as defined by s330(10) & (11) PoCA 2002.
You will see that one circumstance in which information is received in "privileged circumstances" is where it is information communicated or given to you "by a person in connection with legal proceedings or contemplated legal proceedings".
It seems to me that the information on which your suspicion is based was received by you in "privileged circumstances". So, on that ground alone, I would not be making a report to SOCA if I were in your position.
Also, I am do not think that the conduct which you have described amounts to any criminal offence. I would not, on the basis of your description, describe the report as "bogus" - although it may have been prepared incompetently and by someone who did not possess the skills and knowledge required to properly undertake the task.
Equally I would not describe a photograph as "deceptive" simply because it was taken some months after the relevant event occurred.
I think it must be very difficult for a solicitor to judge when his client's prospects of success in a civil legal action fall below 51%. I imagine that you, as an expert instructed by the opposing party, would naturally have a very different view and expectation of the likely outcome.
In short, I would not be making a report to SOCA in these circumstances.
David
These circumstances do not appear to be privileged
Thank you for your further advice, which, as before, has viewed the problems from unexpected perspectives. I do not seek to involve you in a protracted discussion but I would like to comment on your latest advice.
The information in question (the report to the insurer) was received by the Claimant and me before the Claimant instructed a solicitor. Therefore, it did not come to “a professional legal adviser in privileged circumstances” as defined by s330(10) of PoCA 2002 and a report to SOCA does not appear to be precluded on that basis.
In any case, my understanding of s330(10) is that it exculpates rather than prohibits: “A professional legal advisor” to whom information about suspicious activity is communicated in “privileged circumstances” is not guilty of an offence if (s)he does not make a report to SOCA. However, that sub-section does not appear to prohibit the advisor from doing so. That sub-section would also exculpate the Defendant’s solicitor unless he had reason to suspect the report was “furthering a criminal purpose”, in which case sub-section (11) would require him to report to SOCA.
I still consider that the submission of the “bogus” report to the insurer came under section 2 of the Fraud Act. To take an accounting analogy: it was like the insurer requiring an expert report from forensic accountant but instead being given a spreadsheet prepared by an innumerate chum in the pub. The photograph added by the Defendant was described as “deceptive” because of the manner in which he used it. He added it to a report that the insurer believed to have been prepared solely by an independent expert and, by being taken so long after the event, it was able to imply to the insurer that the Claimant’s allegation of damage was false.
It must have been obvious to the Defendants’ solicitor that there was no legitimate chance of success at the trial and that he was obliged to notify the insurer of this. The Claimant’s barrister estimated the prospects of success at better than 80%, which is about as close as a barrister can ever come to saying that success is certain. This was because all the evidence on which the Defendant’s case relied had been demolished before the start of the trial. A pointless trial provided further fees for the solicitor but added to the costs the Claimant could not recover in full and increased the claim to the insurer.
Let's agree to disagree
I am still of the opinion I expressed before. I would not be reporting this to SOCA on the facts which you have described.
Kind regards
David
Thoughts 1 thanks
I am asking myself how this information came to you - what was your role? That may be relevant to whether this information was received in "privileged circumstances" (see s330(10) & (11)).
I am also asking myself whether an offence has been committed and if so whether a person has benefited in a way which involves 'money laundering' (as defined by s340). The report is described as 'bogus' but was it deliberately false / untrue or was it inadequate and incompetently prepared?
A supporting document is described as 'deceptive' but again I ask myself if this was deliberately false / untrue or simply quoted out of context?
I appreciate the OP is concerned that the blameless opponent was left out of pocket but it is not obvious to me that that is of relevance to the issue of a possible Suspicious Activity Report (which concerns what is gained rather than what has been lost).
A key issue I suggest will be whether the claimant benefited by a reduction in the legal fees which he had to bear as a result of a dishonest insurance claim. That requires deliberate dishonest misleading of the insurers by the claimant so that, had the claimant acted honestly, the outcome of his insurance claim would have been different.
David