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Title: Mobile phone records

Date: 03 September 2015

MCN Law

Question

In May I was knocked off my Honda Hornet 600 by an silly t*sser who was more interested in his mobile phone call than looking at the road and other people on it. He just swerved into my path as I was overtaking him on the outside. I was incredibly luckily not to be too badly hurt.

However I was sufficiently injured to make a claim against him and I am claiming for the damage to my bike, kit and watch. The problem is he now denies that he was not on his mobile which is unbelievable. Any tips on dealing with this gratefully received and keep up the good work!

Simon Jenkins, Pontypool

Answer

This issue crops up quite a lot and the story is usually the same one. You need to get your solicitor to write to the third party insurer alleging that he was on his phone and requesting a log of his phone records. Often the insurer will refuse (or more accurately their insured refuses. This does beg the question why? Why would one refuse if there is nothing to hide? If they do not comply then a court application for disclosure of the documents needs to be made. The court is highly likely to order disclosure and the legal costs of the application.

Sometimes it is claimed that there are no phone records because the other party has a pay as you go phone. Phone companies will keep records of calls made from pay as you go phones but most only keep them for 12 months so don’t be fobbed off and make the court application as soon as possible to avoid the risk of losing evidence. I am assuming that the police didn’t report on the accident as I imagine they would have recorded that he was on his phone if they were told this. They often check mobiles at the scene of accidents. If he was on the phone then presumably he will receive points and a fine or could even be prosecuted for careless driving.

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