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Allegation of Fundamental Dishonesty? No Interim Payment Permitted.

<!-- wp:paragraph --> <p><strong>Qaiser Mehmood (by LF Asma Islam) v Harry Mayor [2024] EWHC 1057 (KB)</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Decision of Master Fontaine (SIR)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>8 May 2024</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/KB/2024/1057.html&amp;query=(Mehmood)+AND+((by)+AND+(his)+AND+(litigation)+AND+(friend)+AND+(Mrs)+AND+(Asma)+AND+(Islam))+AND+(v)+AND+(Mayor)">https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/KB/2024/1057.html&amp;query=(Mehmood)+AND+((by)+AND+(his)+AND+(litigation)+AND+(friend)+AND+(Mrs)+AND+(Asma)+AND+(Islam))+AND+(v)+AND+(Mayor)</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><span style="text-decoration: underline;">Introduction</span></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The defendant admitted primary liability, but alleged contributory negligence and disputed the extent of the claimant’s alleged injuries. </li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The defendant disputed the issue of capacity, and this was to be determined at trial.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><span style="text-decoration: underline;">Law</span></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>CPR 57 provides:<br><br>25.7(1) The court may only make an order for an interim payment where any of the following conditions are satisfied—<br><br>(a) the defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant;<br><br>(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;<br><br>(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…<br><br>(4) The court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.<br><br>(5) The court must take into account—<br><br>(a) contributory negligence; and<br><br>(b) any relevant set-off or counterclaim.<br><br></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>S57 of the Act provides:<br><br>(1) This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”)—<br><br>(a) the court finds that the claimant is entitled to damages in respect of the claim, but<br><br>(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.<br><br>(2) The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.<br><br>(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.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><span style="text-decoration: underline;">The claim</span></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>At paragraph 25 she stated:<br><br>‘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.’<br><br></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>She continued at paragraph 26:<br><br>‘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 <em>Salwin</em>, 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 <em>Chiron Corporation &amp; ors v Murex Diagnostics Limited (No 13) </em>[1996] FSR 578 and <em>Trebor Bassett Holdings limited v ADT Fire &amp; Security plc </em>[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 “<em>a reasonable proportion of the likely amount of the final judgment</em>”.<br><br></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The Judge rejected the application; at paragraph 27 she stated:<br><br>‘In any event, the Defendant is correct that the requirements of CPR 25.7(1)(a) are not satisfied in this claim, namely that “<em>the Defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the Claimant.</em>” By virtue of the plea of fundamental dishonesty the Defendant has denied liability to “<em>pay damages</em>” 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 <em>Summers v Fairclough </em>[2012] UKSC 26. That is the short answer to the application.’<br><br></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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:<br><br>‘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.’<br><br></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><span style="text-decoration: underline;">Takeaway</span></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><a href="https://parklaneplowden.co.uk/Corin_Furness">Corin Furness</a> is a member of the PLP Serious Injuries Team and Head of the Civil Fraud &amp; Credit Hire Team.</p> <!-- /wp:paragraph -->

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

<!-- wp:paragraph --> <p><strong>Kirsty Williams-Henry v Associated British Ports Holdings Ltd [2024] EWHC 806 (KB)</strong> - <a href="https://www.bailii.org/ew/cases/EWHC/KB/2024/806.pdf">https://www.bailii.org/ew/cases/EWHC/KB/2024/806.pdf</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Introduction</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>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 <strong>Ritchie J </strong>was handed down on 10 April 2024.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Late evidence concerning substantial injustice was admitted near the end of the trial.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The claimant’s schedule was £2,352,261 and the defendant’s counter schedule was between £259,174 and £367,857.&nbsp; The Judge assessed quantum in the net sum of £596,704.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The claimant was found to be fundamentally dishonest and her claim was dismissed under s57 of the Criminal Justice &amp; Courts Act 2015.&nbsp;</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Law</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>S57 of the Act provides:</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>(1) This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”) —</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(a) the court finds that the claimant is entitled to damages in respect of the claim, but</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(2) The court must dismiss the primary claim, <strong>unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed</strong>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(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.</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Substantial injustice has been considered by the High Court before; notably:</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>In <em>London Organising Committee of the Olympic and Paralympic Games v Sinfield </em>[2018] EWHC 51 where Julian Knowles J stated at [65]:</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>‘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.’</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>In <em>Iddon v Warner</em> [2021] His Honour Judge Sephton QC (sitting as a High Court judge) agreed with Julian Knowles J in <em>LOCOG</em> at [98]; both found that the claimants in their cases had not suffered substantial injustice and dismissed the claims.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>In <em>Woodger v Hallas</em> [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&amp;48]:</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>‘In <em>Iddon</em>, [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.’</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>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 ‘<strong>know it when they see it</strong>’.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>The claim</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>In <em>Williams-Henry</em>Ritchie J summarised his assessment of the credibility of the claimant (and her mother) at [118]:</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>‘<strong>I have come to the conclusion that both the Claimant and her mother have been thoroughly dishonest in their presentation of the </strong><strong>Claimant’s </strong><strong>symptoms and disabilities and have sought to mislead clinicians, medicolegal experts and this Court about the </strong><strong>Claimant’s </strong><strong>health, functioning, activities of daily living and her work abilities</strong>. 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.’</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>He described the claimant’s injuries in these terms at [158]:</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>‘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.’</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>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].</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Fundamental Dishonesty</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Ritchie J reviewed the law relating to s57 CJCA generally at [171&amp;172]; and made a series of specific findings of the claimant’s dishonesty and its affect upon the claim at [173]:</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>‘<strong>The burden of proof lay on the Defendant and I consider that it has been satisfied by the</strong> <strong>Defendant in relation to the specific findings of the lies I have set out above. Those</strong> <strong>covered conscious gross exaggeration and fabrication of the true duration and/or extent</strong> <strong>inter alia of</strong>: (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. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Overall, I find that the Claimant has presented her function and</strong> <strong>disabilities to clinicians, medico-legal experts and the Court dishonestly</strong>. <strong>The effects of</strong> <strong>this dishonesty on the claim have been substantial and fundamental. It has led to the</strong> <strong>experts instructed on her behalf making recommendations for care and case</strong> <strong>management in the past and in future which were and are far in excess of her actual</strong> <strong>needs caused by the accident. The claim for care was pitched at around £1 million.</strong> <strong>Some experts recommended care and therapies for life. The dishonesty has led to the</strong> <strong>cost of surveillance, multiple supplementary medical reports, disclosure applications</strong> <strong>and the need for a 2-week trial. It has substantially affected the presentation and</strong> <strong>preparation of both the claim and the defence. I consider that in law these matters are</strong> <strong>fundamental to the claim</strong>.’</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The Judge was not satisfied that the claimant’s repeated lies to the DWP (when applying for benefits) or to L&amp;G Insurance (for life insurance) were fundamental to the claim [174].</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Substantial Injustice</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Concerning ‘substantial injustice’ Ritchie J reviewed the decisions of <em>LOCOG</em> and <em>Woodger v Hallas</em> [175&amp;176] and stated at [177]:</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>‘<strong>The principle to be applied is that fundamental dishonesty will result in the Claimant</strong> <strong>losing her genuine damages. This penalty is intended by Parliament. So, the starting</strong> <strong>point is that a dishonest claimant is not suffering an injustice per se by being deprived</strong> <strong>of his/her genuine damages. Once fundamental dishonesty has been found by the Judge</strong> <strong>then the Court must consider whether the dismissal will cause SI.</strong> 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. <strong>I</strong> <strong>do not understand how a Judge will know injustice when she/he sees it, with the</strong> <strong>blindfold put on. If that is what Knowles J. was saying then I respectfully do not agree</strong> <strong>with his ruling on the interpretation of SI.</strong> The plain words of the Act tie the responsibility to assess any resulting SI to the dismissal of the claim. <strong>In my judgment</strong> <strong>it is the dismissal of the claim for damages that is the trigger for the analysis of whether</strong> <strong>a substantial injustice will occur if no damages are awarded. One cannot ignore the very</strong> <strong>thing which S.57(3) takes away when considering the injustice of the taking away</strong>. 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). <strong>This section gives</strong> <strong>the Judge discretion which, is to be exercised fairly and only if a threshold with two</strong> <strong>parts is reached. Part one is a finding of injustice to the Claimant. Part two is a finding</strong> <strong>that the injustice is substantial</strong>.’</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>At [78] Ritchie J identified the approach to be used by Courts when deciding whether the claimant can use the ‘shield ‘of substantial injustice:</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>I consider that the correct approach when deciding whether a substantial injustice arises</strong> <strong>is to balance all of the facts, factors and circumstances of the case to reach a conclusion</strong> <strong>about SI. The relevant factors in my judgment are all of the circumstances and include</strong>:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(1) <strong>The amount claimed when compared with the amount awarded</strong>. 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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(2) <strong>The scope and depth of that dishonesty found to have been deployed by the</strong> <strong>claimant</strong>. Widespread and gross dishonesty being more weighty against SI than moderate or minor dishonesty.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(3) <strong>The effect of the dishonesty on the construction of the claim by the claimant and</strong> <strong>the destruction/defence of the claim by the defendant</strong>. 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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(4) <strong>The scope and level of the claimant’s assessed genuine disability caused by the</strong> <strong>defendant</strong>. 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?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(5) <strong>The nature and culpability of the defendant’s tort</strong>. Brutal long term sexual abuse, intentional assault or drug fuelled, dangerous driving being more culpable than mere momentary inadvertence.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(6) <strong>The Court should consider what the Court would do in relation to costs if the claim</strong> <strong>is not dismissed</strong>. 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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(7) <strong>Has the defendant made interim payments, how large are these and will the claimant</strong> <strong>be able to afford to pay them back?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(8) <strong>Finally, what effect will dismissing the claim have on the claimant’s life</strong>. Will she lose her house? Will she have to live on benefits, being unable to work?</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>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. &nbsp;However, Ritchie J stated at [204]:</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>‘I consider that I cannot take into account the threat of or the risk of suicide when making the decision on fundamental dishonesty.’</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>At [205] the Judge identified the matters which were relevant to the issue of substantial injustice:</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>‘For the decision on SI I shall take each relevant factor in turn. (1) <strong>The amount claimed when compared with the amount awarded.</strong> 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) <strong>The scope and depth of the dishonesty found to have been deployed by the Claimant</strong>. 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&amp;G for financial gain alongside her many fundamental untruths to this Court, her treating clinicians and the experts. (3) <strong>The effect of the dishonesty on the construction of the claim by the Claimant and the destruction/defence of the claim by the Defendant</strong>. 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) <strong>The scope and level of the Claimant’s assessed genuine disability caused by the Defendant.</strong> 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) <strong>The nature and culpability of the Defendant’s tort. The Defendant’s tort was at the lower end of the culpability scale</strong>. The pier had stood in the state it was in for years with no previous accidents. (6) <strong>The Court should consider what the Court would do in relation to costs if the claim is not dismissed</strong>. 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) <strong>Finally, what effect will dismissing the claim</strong> <strong>have on the Claimant’s life</strong>. 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.’</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>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]:</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>‘<strong>This Claimant maintained before trial, in open Court and in her last served witness statement, that she had never lied during this claim.</strong> <strong>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</strong> <strong>Claimant’s damages by adverse costs orders if damages are awarded. I further take into</strong> <strong>account the excellent recovery which the Claimant made from the injuries with high</strong> <strong>quality NHS treatment both at hospital and for years afterwards. On balance, I do not</strong> <strong>find that it would be a substantial injustice to dismiss the claim</strong>. 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. <strong>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&amp;G insurance about her disabilities</strong>.’</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The claim was dismissed.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Takeaway</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>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.&nbsp; This is a significantly more nuanced approach than used by the courts is cases such as <em>LOCOG</em>, <em>Iddon </em>and <em>Woodger v Hallas.</em> &nbsp;&nbsp;I expect that in future other courts will shape their determination of substantial injustice by reference to the criteria identified by Ritchie J in <em>Williams-Henry</em>.&nbsp; &nbsp;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Defendants can take comfort in the robustness of the decision against the evidential background of widespread and destructive dishonesty.&nbsp; 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.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>There is however some comfort for claimants.&nbsp; Courts should not ignore the fact of the dismissal of the claim and conduct their assessment ‘blindfold.’ &nbsp;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.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Will courts know substantial injustice when they see it? I think its more likely to be identified now than before. &nbsp;</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><a href="https://parklaneplowden.co.uk/Corin_Furness">Corin Furness</a> is a member of the PLP Serious Injuries Team and Head of the Civil Fraud &amp; Credit Hire Team.</p> <!-- /wp:paragraph -->