Legal Update
10 May 2024
Allegation of Fundamental Dishonesty? No Interim Payment Permitted.
Author:
Corin Furness
Qaiser Mehmood (by LF Asma Islam) v Harry Mayor [2024] EWHC 1057 (KB)
Decision of Master Fontaine (SIR)
8 May 2024
Introduction
- In this case, the claimant brought a claim for serious injuries arising from a RTA in January 2019. As a consequence, the claimant suffered severe brain injury which he alleged caused a lack of capacity.
- The defendant admitted primary liability, but alleged contributory negligence and disputed the extent of the claimant’s alleged injuries.
- The defendant disputed the issue of capacity, and this was to be determined at trial.
- Further, relying on medical and surveillance evidence and by an Amended Defence, the defendant alleged the Claimant was fundamentally dishonest and that the claim should be dismissed under s57 Criminal Justice and Courts Act 2015.
- The claimant sought retrospective approval of an interim payment of £10,000 made in August 2019 and applied for a further interim payment of £75,000. The further payment was to be used to fund rehabilitation recommended by the experts instructed by the claimant and defendant.
- The application was refused. Even though primary liability had been admitted, the defendant’s allegation of fundamental dishonesty meant that the threshold criteria contained in CPR 25.7(1)(a) and CPR 25.7(1)(c) had not been met.
Law
- CPR 57 provides:
25.7(1) The court may only make an order for an interim payment where any of the following conditions are satisfied—
(a) the defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant;
(b) the claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money (other than costs) to be assessed;
(c) it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for an interim payment whether or not that defendant is the only defendant or one of a number of defendants to the claim…
(4) The court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.
(5) The court must take into account—
(a) contributory negligence; and
(b) any relevant set-off or counterclaim. - S57 of the Act provides:
(1) This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”)—
(a) the court finds that the claimant is entitled to damages in respect of the claim, but
(b) on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.
(2) The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.
(3) The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.
The claim
- The Judge reviewed and summarised the evidence of the medical experts instructed by the claimant and the defendant; and in particular identified the experts’ evidence relevant to the allegation of fundamental dishonesty.
- At paragraph 25 she stated:
‘The issue as to whether the Claimant is exaggerating the effect of his injuries, and if so, whether he is being fundamentally dishonest in so doing, can only be resolved at trial when the oral evidence of the medical experts and of the witnesses of fact is heard. That is not an issue that can be resolved on a summary basis with only documentary evidence.’ - She continued at paragraph 26:
‘Even if the trial judge considers that the conditions of s. 57(1) are satisfied, they will have different options as to what the consequence of such finding should be. It may be dismissal of the primary claim, but if the court finds that the Claimant would thereby suffer substantial injustice that is not obligatory. If the court found that there had not been substantial dishonesty, but, for example, found there had been exaggeration of the Claimant’s symptoms and/or the effects of the injuries suffered which were not fundamentally dishonest, the damages claimed may be reduced to a greater or lesser degree depending upon the judge’s findings. Alternatively, the judge may consider that there is no merit to the application for a finding of fundamental dishonesty and that the submissions made on the Claimant’s behalf as to his inability to carry out the work he previously did are correct. But this is not a case similar to the position in Salwin, and indeed in many applications for interim payments in personal injury claims. The range of what the Claimant may expect to recover is from nothing to the full amount he is seeking. There is no “irreducible minimum” as referred to in Chiron Corporation & ors v Murex Diagnostics Limited (No 13) [1996] FSR 578 and Trebor Bassett Holdings limited v ADT Fire & Security plc [2012] EWHC 3365 (TCC) per Coulson J. at [13]. Thus, it is not possible for the court to conclude, in accordance with CPR 25.7(4), what would be “a reasonable proportion of the likely amount of the final judgment”. - The Judge rejected the application; at paragraph 27 she stated:
‘In any event, the Defendant is correct that the requirements of CPR 25.7(1)(a) are not satisfied in this claim, namely that “the Defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the Claimant.” By virtue of the plea of fundamental dishonesty the Defendant has denied liability to “pay damages” to the Claimant, and at paragraph 29 of the Amended Defence seeks dismissal of the claim under either s. 57 or under the jurisdiction outlined in Summers v Fairclough [2012] UKSC 26. That is the short answer to the application.’ - The Judge also rejected the claimant’s submission that the court also had power to make an order under CPR 27(1)(c) and stated at paragraph 29:
‘Exactly the same considerations apply in respect of CPR 25.7(1) (c) as apply to CPR 25.7(1) (a). For the reasons given, the court cannot be so satisfied.’ - The Judge acknowledged that the refusal to make an interim payment may cause injustice to the claimant should the defendant’s allegation of fundamental dishonesty be rejected as he would not have received the funds needed for the recommended rehabilitation. However, the requirements for an interim payment were not met and the Judge was bound to refuse the application.
Takeaway
- The Judge’s refusal to allow the application was not dependent upon an assessment of the evidential value of the medical evidence or surveillance evidence. An allegation of fundamental dishonesty (which as here had been pleaded and was supported by evidence) was without more an absolute bar to an interim award of damages.
- A bare allegation of fundamental dishonesty (especially if not pleaded) will not by itself prevent a court making an interim award. Even though there is a wealth of authority which permits a defendant to raise fundamental dishonesty at trial even when not pleaded (providing the claimant has been given adequate warning and a proper opportunity to meet the allegation per paragraph 31 of Howlett v Davies [2017] EWCA Civ 1696), this case is a salutary reminder for defendants that in many cases it essential for the allegation to be pleaded fully and properly.
- If the interim payment has already been made before the allegation of fundamental dishonesty is pleaded, an application for repayment of the interim payment is likely to be permitted under CPR 25.8 if fundamental dishonesty is proven.
- The court has power to retrospectively validate any step taken in proceedings under CPR 21.3(4). Here, the Judge refused to do so for the same reasons she rejected the application for a further interim payment.
Corin Furness is a member of the PLP Serious Injuries Team and Head of the Civil Fraud & Credit Hire Team.
