Substantial Injustice and Fundamental Dishonesty: Will courts know it when they see it?

Kirsty Williams-Henry v Associated British Ports Holdings Ltd [2024] EWHC 806 (KB) - https://www.bailii.org/ew/cases/EWHC/KB/2024/806.pdf

Introduction

• In this case, the claimant brought a claim for injuries and losses she suffered after falling from the defendant’s pier in July 2018.  Liability was agreed at 2/3 in the claimant’s favour. The trial on quantum and fundamental dishonesty lasted 11 days.  The judgment of Ritchie J was handed down on 10 April 2024.

• Late evidence concerning substantial injustice was admitted near the end of the trial.

• The claimant’s schedule was £2,352,261 and the defendant’s counter schedule was between £259,174 and £367,857.  The Judge assessed quantum in the net sum of £596,704.

• The claimant was found to be fundamentally dishonest and her claim was dismissed under s57 of the Criminal Justice & Courts Act 2015. 

• The Judge carried out a detailed analysis of the way courts should consider the claimant’s ‘shield’ of substantial injustice under s57(2) of the Act; in this case finding that the claimant would not suffer substantial injustice if the claim was dismissed.

Law

• 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.

• Substantial injustice has been considered by the High Court before; notably:

• In London Organising Committee of the Olympic and Paralympic Games v Sinfield [2018] EWHC 51 where Julian Knowles J stated at [65]:

‘Given the infinite variety of circumstances which might arise, I prefer not to try and be prescriptive as to what sort of facts might satisfy the test of substantial injustice. However, it seems to me plain that substantial injustice must mean more than the mere fact that the claimant will lose his damages for those heads of claim that are not tainted with dishonesty. That must be so because of s.57(3). Parliament plainly intended that sub-section to be punitive and to operate as a deterrent. It was enacted so that claimants who are tempted to dishonestly exaggerate their claims know that if they do, and they are discovered, the default position is that they will lose their entire damages. It seems to me that it would effectively neuter the effect of s.57(3) if dishonest claimants were able to retain their 'honest' damages by pleading substantial injustice on the basis of the loss of those damages per se. What will generally be required is some substantial injustice arising as a consequence of the loss of those damages.’

• In Iddon v Warner [2021] His Honour Judge Sephton QC (sitting as a High Court judge) agreed with Julian Knowles J in LOCOG at [98]; both found that the claimants in their cases had not suffered substantial injustice and dismissed the claims.

• In Woodger v Hallas [2022] PIQR P18 Julian Knowles also found that there was no proper basis for a finding of substantial injustice and dismissed the claim. He stated at [47&48]:

‘In Iddon, [103] the judge approached the question of substantial injustice by balancing on the one hand, the nature and extent Mrs Iddon’s dishonesty, and on the other the injustice to her of dismissing her whole claim, and came down in favour of dismissal on the basis that the former outweighed the latter. Mr Sasse commended this approach and commented that the judge had not undertaken any balancing exercise.  Taking the same approach to this appeal, even on the assumption that there was some injustice to this Claimant (which I have found there was not), the same conclusion follows. The sustained nature of his dishonesty; the length of time for which it was sustained; and his involvement of others all make his dishonesty so serious that it would have outweighed any injustice to him.’

• Julian Knowles J expressed no surprise when he was told by counsel there was no case which had defined the meaning of ‘substantial injustice’, stating instead that county court judges would generally ‘know it when they see it’.

The claim

• In Williams-HenryRitchie J summarised his assessment of the credibility of the claimant (and her mother) at [118]:

‘I have come to the conclusion that both the Claimant and her mother have been thoroughly dishonest in their presentation of the Claimant’s symptoms and disabilities and have sought to mislead clinicians, medicolegal experts and this Court about the Claimant’s health, functioning, activities of daily living and her work abilities. I have considered the subjective elements above but looking at the Claimant’s statements which I have identified as lies above and below, objectively, taking into account what a reasonable member of the public would consider to be honest, knowing all of the relevant facts, I have come to the conclusion that the Claimant and her mother have been objectively dishonest. I will set out the law in relation to findings of dishonesty below.’

• He described the claimant’s injuries in these terms at [158]:

‘I find that in the fall the Claimant suffered skull fractures and a moderately severe TBI. This involved substantial frontal and temporal lobe damage. She has been fortunate and has achieved a very good recovery since the fall. Her intellect and cognition are retained intact. Her symptoms from the TBI are mainly mild to moderate fatigue, irritability, anxiety, some disinhibition, some emotional dysregulation and some mild reduction in short term memory when tired. I do not consider that the Claimant has suffered organic cognitive decline or substantial loss of the function of her memory. I do not consider that the Claimant has lost the ability to multi-task or her special awareness.’

• The Judge also identified the following injuries: fractured ankle; fractured pelvis; sequestrated lumbar disc; and low mood. Also, finding that the claimant’s depression was not the cause of the claimant’s dishonesty at [165].

Fundamental Dishonesty

• Ritchie J reviewed the law relating to s57 CJCA generally at [171&172]; and made a series of specific findings of the claimant’s dishonesty and its affect upon the claim at [173]:

‘The burden of proof lay on the Defendant and I consider that it has been satisfied by the Defendant in relation to the specific findings of the lies I have set out above. Those covered conscious gross exaggeration and fabrication of the true duration and/or extent inter alia of: (1) her left sided hearing loss, (2) her disability when walking, (3) her noise intolerance, (4) her dizziness and balance issues, (5) her fatigue, (6) her lack of spatial awareness, (7) her ankle pain and range of movement, (8) her left sided hand grip and alleged weakness, (9) her cognitive disability, (10) her memory and cognitive functioning, (11) her light intolerance, (12) her back of head pain, (13) her ability to shower alone, (14) her foreign travel, (16) her ability to socialise and her consumption of alcohol, (17) her ability to drive long distances, (18) her need for help with ADL, (19) her headaches.

Overall, I find that the Claimant has presented her function and disabilities to clinicians, medico-legal experts and the Court dishonestly. The effects of this dishonesty on the claim have been substantial and fundamental. It has led to the experts instructed on her behalf making recommendations for care and case management in the past and in future which were and are far in excess of her actual needs caused by the accident. The claim for care was pitched at around £1 million. Some experts recommended care and therapies for life. The dishonesty has led to the cost of surveillance, multiple supplementary medical reports, disclosure applications and the need for a 2-week trial. It has substantially affected the presentation and preparation of both the claim and the defence. I consider that in law these matters are fundamental to the claim.’

• The Judge was not satisfied that the claimant’s repeated lies to the DWP (when applying for benefits) or to L&G Insurance (for life insurance) were fundamental to the claim [174].

Substantial Injustice

• Concerning ‘substantial injustice’ Ritchie J reviewed the decisions of LOCOG and Woodger v Hallas [175&176] and stated at [177]:

‘The principle to be applied is that fundamental dishonesty will result in the Claimant losing her genuine damages. This penalty is intended by Parliament. So, the starting point is that a dishonest claimant is not suffering an injustice per se by being deprived of his/her genuine damages. Once fundamental dishonesty has been found by the Judge then the Court must consider whether the dismissal will cause SI. However, trying to identify whether dismissing a claim for damages with a properly assessed genuine quantum of say £600,000 would cause any or even a substantial injustice to a claimant, whilst ignoring the very dismissal which is the only operative cause of any potential injustice, is imposing a blindfold on the Judge which the Act itself does not impose. I do not understand how a Judge will know injustice when she/he sees it, with the blindfold put on. If that is what Knowles J. was saying then I respectfully do not agree with his ruling on the interpretation of SI. The plain words of the Act tie the responsibility to assess any resulting SI to the dismissal of the claim. In my judgment it is the dismissal of the claim for damages that is the trigger for the analysis of whether a substantial injustice will occur if no damages are awarded. One cannot ignore the very thing which S.57(3) takes away when considering the injustice of the taking away. I accept, of course, that the aim of the section is to punish dishonesty by the dismissal of the claim. But this is tempered by Parliament’s inclusion of S.57(2). This section gives the Judge discretion which, is to be exercised fairly and only if a threshold with two parts is reached. Part one is a finding of injustice to the Claimant. Part two is a finding that the injustice is substantial.’

• At [78] Ritchie J identified the approach to be used by Courts when deciding whether the claimant can use the ‘shield ‘of substantial injustice:

I consider that the correct approach when deciding whether a substantial injustice arises is to balance all of the facts, factors and circumstances of the case to reach a conclusion about SI. The relevant factors in my judgment are all of the circumstances and include:

(1) The amount claimed when compared with the amount awarded. If the dishonest damages claimed were small or moderate compared to the size of the assessed genuine damages which were substantial or very substantial this will weigh more heavily in favour of an SI ruling.

(2) The scope and depth of that dishonesty found to have been deployed by the claimant. Widespread and gross dishonesty being more weighty against SI than moderate or minor dishonesty.

(3) The effect of the dishonesty on the construction of the claim by the claimant and the destruction/defence of the claim by the defendant. This would be measured by considering all matters including the costs consequences of the work done in relation to the dishonesty compared with the work done had there been no dishonesty.

(4) The scope and level of the claimant’s assessed genuine disability caused by the defendant. If the claimant is very seriously brain injured or spinally injured, then depriving the claimant of damages would transfer the cost of care to the NHS, social services and the taxpayer generally and that would be more unjust than if the claimant had, for instance, a mild or moderate whiplash injury. The insurer of the defendant (if there is one) has taken a premium for the cover provided. Why should the taxpayer carry the cost?

(5) The nature and culpability of the defendant’s tort. Brutal long term sexual abuse, intentional assault or drug fuelled, dangerous driving being more culpable than mere momentary inadvertence.

(6) The Court should consider what the Court would do in relation to costs if the claim is not dismissed. The Judge should ask: will the Court award most of the trial and/or pre-trial costs to the defendant in any event because fundamental dishonesty has been proven? Also, will the claimant have to pay some or all of his/her own lawyers’ costs out of damages if the claim is not dismissed? These both aim towards answering the question: “what damages will be left for the claimant after costs awards, costs liabilities and adverse costs insurance premiums are satisfied?” If the genuine damages to be received by the claimant will be substantially reduced or eradicated by the adverse costs awards, then it is less likely that SI will be caused by the dismissal.

(7) Has the defendant made interim payments, how large are these and will the claimant be able to afford to pay them back?

(8) Finally, what effect will dismissing the claim have on the claimant’s life. Will she lose her house? Will she have to live on benefits, being unable to work?

• Somewhat unusually, the claimant had admitted specific evidence to persuade the Court that she would suffer substantial injustice if the claim was dismissed. This included evidence from herself, her mother and her treating psychiatrist (all of whom provided sworn statements). The evidence was to the effect that the claimant would commit suicide if the claim was dismissed.  However, Ritchie J stated at [204]:

‘I consider that I cannot take into account the threat of or the risk of suicide when making the decision on fundamental dishonesty.’

• At [205] the Judge identified the matters which were relevant to the issue of substantial injustice:

‘For the decision on SI I shall take each relevant factor in turn. (1) The amount claimed when compared with the amount awarded. The Claimant sought £2.5 million and recovered just under £600,000. The difference is not outside the usual bounds of claims and awards in personal injury claims, however the dishonest parts of the claim inflated the damages sought by over £1 million. (2) The scope and depth of the dishonesty found to have been deployed by the Claimant. The scope of the Claimant’s untruths was wide. They related to her asserted pain, her ADL, her social life, her physical disabilities and her mental disabilities. The level of dishonesty was high in my judgment and was for financial gain. The Claimant told ancillary untruths to the DWP and the life insurer L&G for financial gain alongside her many fundamental untruths to this Court, her treating clinicians and the experts. (3) The effect of the dishonesty on the construction of the claim by the Claimant and the destruction/defence of the claim by the Defendant. I consider that the Claimant’s dishonesty had a very substantial effect on the trial, on the preparation for the trial and on the evidence relating to the claims for case management, care, therapies, loss of earnings and the figure for pain and suffering and loss of amenity. It also led to many more experts’ reports. (4) The scope and level of the Claimant’s assessed genuine disability caused by the Defendant. The Claimant is moderately severely brain injured but has made a very good physical and cognitive recovery. Depriving the Claimant of damages will not transfer much, if any, cost of care to the NHS, social services and the taxpayer generally. In my judgment she can work and live independently. (5) The nature and culpability of the Defendant’s tort. The Defendant’s tort was at the lower end of the culpability scale. The pier had stood in the state it was in for years with no previous accidents. (6) The Court should consider what the Court would do in relation to costs if the claim is not dismissed. If I were to find SI, I would almost certainly award the trial and pre-trial costs to the Defendant in any event because fundamental dishonesty has been proven. These costs may be very substantial considering the size of the Defendant’s costs budget. I have, of course, not seen any Part 36 offers, but the fundamental dishonesty will have an overarching effect on the costs orders which usually flow from Part 36 offers. The Claimant would most likely have to pay some of her own lawyers’ base costs and success fees out of damages if the claim is not dismissed because of my probable adverse costs orders against her. What damages will be left for the Claimant after adverse costs awards, her own lawyers’ costs and insurance premiums are satisfied? Will her adverse costs insurance cover fundamental dishonesty? I doubt it, but have not been shown any policy. In my estimation the genuine damages to be received by the Claimant will be reduced (or potentially eradicated) by the adverse costs orders and the standard terms of her own CFA (which I have not seen but which usually entitle the lawyers to recover their costs on recovery of any sum in damages). It would have assisted the Court if I had been shown the CFA and the adverse costs insurance policy for the SI issue. (7) Finally, what effect will dismissing the claim have on the Claimant’s life. I am unsure what the effect will be on the Claimant’s life. I consider that she is capable of work, physically and mentally, from the perspective of the injuries caused by the Defendant. I take into account the evidence of the Claimant’s suicidal ideation. I consider that the Claimant’s current unstable state of mental health has been caused by her own dishonesty. The advice she received to take a sabbatical and later, to give up work, was likewise so caused. The Claimant was in work until October 2022. In my judgment her stopping work was not caused by the tort. I am unclear whether the dismissal of the claim will lead to the Claimant being unable to repay her mortgage. She paid part of it off out of the £108,000 she received from an insurance policy after the fall. She should be able to afford the reduced mortgage repayments if she gets back to work. She has minimal savings.’

• Noting that no application had been made by the defendant for repayment of a £75,000 interim payment under CPR25, and accepting that to repay the sum the claimant would lose her home which combined with the dismissal of the claim could be descried as a ‘substantial injustice’ because she would be ‘homeless, jobless, depressed and suicidal’ the Judge balancing the remaining factors before reaching a decision at [206]:

‘This Claimant maintained before trial, in open Court and in her last served witness statement, that she had never lied during this claim. I take into account the wide scope and considerable depth of the Claimant’s fundamental dishonesty in the claim, compared to the low level of culpability of the Defendant (the Defendant company was also only 2/3rds to blame on liability). I take into account the large sums which would be taken out of the Claimant’s damages by adverse costs orders if damages are awarded. I further take into account the excellent recovery which the Claimant made from the injuries with high quality NHS treatment both at hospital and for years afterwards. On balance, I do not find that it would be a substantial injustice to dismiss the claim. I know it looks like a large sum of money to deprive a genuinely injured person of, but by drafting and passing S.57 Parliament sought to stamp out dishonesty which is fundamental in personal injury claims and the Claimant has breached this law. Finally, I take into account that the Claimant was wholly unrepentant when she gave evidence and had sought, in parallel, to defraud the DWP and L&G insurance about her disabilities.’

• The claim was dismissed.

Takeaway

• Ritchie J conducted a detailed analysis of the relevant factors a court should identify when considering whether a claimant can prove substantial injustice and avoid the draconian dismissal of a claim under s57 CJCA.  This is a significantly more nuanced approach than used by the courts is cases such as LOCOG, Iddon and Woodger v Hallas.   I expect that in future other courts will shape their determination of substantial injustice by reference to the criteria identified by Ritchie J in Williams-Henry.   
• Defendants can take comfort in the robustness of the decision against the evidential background of widespread and destructive dishonesty.  It is another success for a defendant; I am unaware of any reported decision where a claimant has successfully used the ‘shield ‘of substantial injustice.
• There is however some comfort for claimants.  Courts should not ignore the fact of the dismissal of the claim and conduct their assessment ‘blindfold.’  In cases where the dishonesty is less extensive and the affect upon the conduct of the claim by the defendant more limited, claimants may now use the evidential framework used by Ritchie J to protect themselves against the punitive operation of s57.
• Will courts know substantial injustice when they see it? I think its more likely to be identified now than before.  

Corin Furness is a member of the PLP Serious Injuries Team and Head of the Civil Fraud & Credit Hire Team.