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Nicola Twine reflects on securing a finding of Fundamental Dishonesty with Enforceable Costs

<!-- wp:paragraph --> <p><strong><mark style="background-color:rgba(0, 0, 0, 0)" class="has-inline-color has-luminous-vivid-orange-color">“</mark></strong> What appears at first blush to be a straightforward case often is not. Many personal injury claims arise from ‘rear end shunt no fault accidents’, and damages are often expected to be recovered where that accident was sufficient to cause injury.<br><br>Withholding of information and misleading provision of information can have serious consequences.<br><br>Last week, in a case instructed by <a href="https://dwfgroup.com/en/services/legal-services/insurance/motor">DWF</a> for <a href="https://www.aviva.co.uk/">Aviva</a>,  I was successful in having a claim dismissed and securing a finding of ‘fundamental dishonesty’.<br><br>The Claimant had been involved in two accidents in proximity and brought claims arising from both. DWF had obtained the medical reports in both cases and social media posts, which were able to be considered alongside her medical records. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant had been selective in what she had disclosed to medical experts, in relation to: each accident, her injuries, and her medical history. On the special damages claim there were suspicions of ‘claims layering’ - that the CBT and physiotherapy treatment had been added with the specific purpose of increasing the value of the claim and costs.<br><br>As the Defendant did not call evidence the case was determined following robust cross examination and submissions on credibility. The Claimant's reasons for her apparent failures were many. She was a poor historian unable to explain the inconsistencies and oddities. What is outlined as expected of a genuine claimant in 'Molodi' was not present. The trial Judge did not make finding of 'claims layering' but expressed concern about the medical reports in the case. Whilst it appeared that the Claimant may have been caught up in a model operated by others the Judge found that the Claimant was dishonest. In this case there was more than exaggeration at play, although exaggeration alone can give rise to a finding of fundamental dishonesty.<br><br>Fundamental dishonesty was found with enforceable costs and the Claimant was ordered to repay an interim payment.<br><br>Thanks to <a href="https://www.linkedin.com/in/ACoAAD7cNOYBLe-BDqnjeo_BlCJOGtKN6Re40to">Rohini Kapur</a> for her instructions and assistance. <strong><mark style="background-color:rgba(0, 0, 0, 0)" class="has-inline-color has-luminous-vivid-orange-color">”</mark></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Nicola Twine is a member of the specialist Personal Injury, Clinical Negligence, and Employment Teams at Parklane Plowden Chambers and is ranked as a Leading Junior by Chambers &amp; Partners and The Legal 500 in Employment and by The Legal 500 in Clinical Negligence. Her full profile can be accessed <a href="https://www.parklaneplowden.co.uk/barristers/nicola-twine">here</a>.</em></p> <!-- /wp:paragraph -->

A Sigh of Relief? Court of Appeal Confirms that Denton Principles Apply to Applications to Set Aside Default Judgment

<!-- wp:paragraph --> <p>In <em>FXF v English Karate Federation &amp; Anor</em> [2023] EWCA Civ 891, the Court of Appeal confirmed beyond doubt that the <em>Denton </em>principles must be taken into account when considering an application to set aside judgment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Claim</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant brought proceedings in relation to alleged sexual abuse by a karate instructor. The Second Defendant, Ishinryu Karate Association (“IKA”), failed to file its defence in time. The Claimant obtained default judgment, pursuant to CPR 12.4.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>IKA applied to set aside the judgment, pursuant to CPR 13.3. A Master allowed the application. The Claimant appealed on the basis that the Master had failed to “apply <em>Denton </em>to the exercise of his discretion.” The Claimant contended that had the Master applied <em>Denton </em>then he would not have set the judgment aside.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Court of Appeal’s Decision</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court of Appeal held that the Master <em>had </em>applied the <em>Denton </em>criteria, although he had not made this explicitly clear in his judgment, noting that:</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontStyle":"italic","fontWeight":"400"}}} --> <p style="font-style:italic;font-weight:400">4. The Master set aside the Judgment dealing specifically with the two factors mentioned in CPR Part 13.3, namely the merits and delay in applying to set aside. He held that (i) the IKA had a real prospect of successfully defending the claimant's case on vicarious liability: the defence was "arguable and sophisticated", and (ii) the application to set aside had not been made promptly and there was no good reason for the delay. In relation to <em>Denton</em>, he said in his judgment: </p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontStyle":"italic","fontWeight":"400"}}} --> <p style="font-style:italic;font-weight:400">However, I turn to the express primary requirements of 13.3(1). Mr Tahzib [counsel for the claimant] refers appropriately to&nbsp;<em>Denton</em>&nbsp;and its criteria. But the familiar criteria of&nbsp;<em>Denton</em>&nbsp;are qualified because of necessary incorporation into the context and the express criteria under CPR 13.3: in particular, the criterion of "real prospect of successfully defending the claim".</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In addition, the Court of Appeal agreed with the Master’s decision that it was appropriate that judgment should be set aside.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>General Application of the Judgment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Importantly, the Court of Appeal confirmed unequivocally that the <em>Denton </em>criteria do apply to applications to set aside judgment pursuant to CPR 13.3.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Sir Geoffrey Vos MR, giving the leading judgment, stated:</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontStyle":"italic","fontWeight":"400"}}} --> <p style="font-style:italic;font-weight:400">72. For the reasons I have given, this court is now clearly stating that the&nbsp;<em>Denton</em>&nbsp;tests apply in their full rigour to applications to set aside default judgments.&nbsp;<em>PXC&nbsp;</em>is overruled and the&nbsp;<em>dicta&nbsp;</em>in&nbsp;<em>Cunico</em>&nbsp;are no longer to be relied upon.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Although the Court of Appeal came down firmly in favour of applying <em>Denton </em>(and, indeed, held that this was made clear by the existing authorities), it seems fair to say that the position has <em>not </em>always been clear to practitioners.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>While it may, on one view, have made sense to apply the <em>Denton </em>criteria, it would not have been obviously foolish to take the view that only the criteria set out at CPR 13.3 (which are different from the <em>Denton </em>criteria) should apply.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The White Book commentary accompanying CPR 13.3 (specifically 13.3.5) does not make clear that <em>Denton </em>should be applied, instead setting out the competing contentions as to its relevance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The clarity now provided by the Court of Appeal is welcome.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A link to the full judgment on Bailli can be found <a href="https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2023/891.html&amp;query=(Fxf)+AND+(karate)">here</a>.</p> <!-- /wp:paragraph -->

Giving Notice – Fundamental to Alleging Dishonesty?

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-watson/" target="_blank" rel="noreferrer noopener">Sophie Watson</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the High Court case of <em>Jenkinson v Robertson </em>[2022] EWHC 791 Mr Justice Choudhury overturned a finding of fundamental dishonesty. This case highlights the need to give a Claimant adequate notice of allegations of fundamental dishonesty and provide them with sufficient time to properly respond.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>By way of the background, the Claimant sustained injuries in a road traffic collision. The first instance judge found that the Claimant was dishonest in that he exaggerated his symptoms of a back injury. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant was given permission to appeal on 3 grounds:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><li>Procedural fairness: The Claimant had not been given sufficient notice/opportunity to respond to allegations of fundamental dishonesty.<br></li><li>The Judge had wrongly reversed the burden of proof, requiring the Claimant to prove that he was not fundamentally dishonest.<br></li><li>The Judge was led into error, or was wrong, in relation to each of the factors upon which he based his decision that the Claimant was fundamentally dishonest.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Judgement</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In respect of the first ground, the Defendant relied upon correspondence which asserted that the claim was ‘<em>exaggerated and unreasonable’ </em>as evidence of putting the Claimant on notice<em>.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, Mr Justice Choudhury rejected that this was sufficient to equate to allegations of fundamental dishonesty and may be misconceived. He found any doubt as to the allegations could have been cleared up by pleading with specificity.<em></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Defendant also sought to argue, in further correspondence, that they had stated that they did not consider the Claimant’s losses to be reasonable or credible. However, Mr Justice Choudhury found that ‘<em>an allegation that a claim was not credible could amount to notice of an allegation of dishonesty; but without more… it did not unequivocally amount to such an allegation’</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court also noted that the Defendant refused to provide particulars on grounds which its s.57 Criminal Justice and Courts Act 2015 (‘s.57’) application was made, even though requested to do so. Mr Justice Choudhury found that this was not a satisfactory way to pursue an allegation of fundamental dishonesty.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It was ultimately found that the Claimant was not given any real notice apart from a ‘<em>vague and deliberately unparticularised allusion to the possibility of a s.57 application’. </em>This had led to key documents and information failing to be placed before the Court.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mr Justice Choudhury stated that in the interests of fairness the Claimant should have been given adequate warning of and proper opportunity to deal with fundamental dishonesty given the severe consequences.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The appeal for procedural fairness was allowed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Briefly, ground 2 was dismissed on the basis that there was no real reference in the first instance judgement of the burden of proof. It therefore could not be said that the burden had been reversed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Finally, on ground 3, it was upheld that there were substantial errors in all 3 matters which the first instance judge found fundamental dishonesty.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As acknowledged in the judgement, the Defendant is not precluded from running a s.57 defence if the same is not pleaded. However, this is another case which warns against the possibility of failing to put the Claimant on proper notice of allegations of fundamental dishonesty. Without adequate notice and sufficient time for the Claimant to respond there is a real possibility that the Court could reject allegations of fundamental dishonesty. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The full judgement can be accessed at <a href="https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/QB/2022/791.html&amp;query=(jenkinson)+AND+(v)+AND+(robertson)" target="_blank" rel="noreferrer noopener">www.bailii.org - <em>Jenkinson v Robertson</em> (Rev1) [2022] EWHC 791</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author </strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-watson/" target="_blank" rel="noreferrer noopener">Sophie Watson</a>&nbsp;is a pupil barrister currently undertaking a pupillage with Parklane Plowden Chambers.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Sophie is now accepting instructions.</p> <!-- /wp:paragraph -->