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Pleadings and fundamental dishonesty: Howlett affirmed as film director’s compensation claim is dismissed - Jeff Turton, Weightmans LLP

02/10/18. David Pinkus v Direct Line [2018] EWHC 1671 is an example of another claim being dismissed under section 57 Criminal Justice and Courts Act 2015. The claimant raised a preliminary issue as to whether the defendant should be prevented from arguing the claim was dishonest at all.  The facts  The claimant was involved in a road traffic accident on 21 August 2012 with the defendant’s insured. Liability was admitted, but the value of the claim was hotly disputed. The claimant, who claimed that he suffered from profound psychological/psychiatric symptoms which resulted in his loss of a job as an assistant film director, valued his claim at £850,000. The defendant accepted that the claimant sustained some injury but, having identified a significant number of credibility issues in respect of the claim, valued it more conservatively at £2,000-£3,000.  The claimant raised a preliminary issue at trial, which was that the defendant was not entitled to argue the claim was fundamentally dishonest, on the basis that the issue was raised too late and the related pleading was defective.

The pleadings issue

In its updated counter schedule of loss, which was served less than one month before trial, the defendant contended that the claim was fundamentally dishonest. The original defence made no such allegation.The claimant objected to the defendant’s approach and contended that the allegation was not pleaded with sufficient particularity. In response, the defendant relied upon Howlett v Davies [2017] EWCA Civ 1696, in which the Court of Appeal found that a district judge had been entitled to find that a personal injury claim was fundamentally dishonest, despite no formal allegation of fraud being pleaded in the defence. The defendant also pointed out that, whilst dishonesty was not expressly in issue from the outset, the original defence had denied that the accident occurred as the claimant said, the defendant had also disclosed surveillance evidence, the claimant also knew that there was a vast difference in the respective parties’ valuation of the claim and, at an earlier hearing, the defendant had served a skeleton argument, which set out that, “The credibility, honesty and reliability of the claimant [were] in issue”.In relation to the pleadings issue, the judge accepted that the claimant had been placed fairly on notice of the concerns raised by the defendant and, in keeping with Howlett, it was open to him ‘having heard all the evidence, to conclude that the claimant is lying or exaggerating in respect of some of his claim’.

The judgment

Having decided the preliminary issue in the defendant’s favour, the judge then carried out a methodical analysis of each area of evidence, to include the claimant’s pre and post accident social media posts.

In comparing the claimant’s social media posts with the case he had presented, the judge remarked, “On the one hand particularly by reference to Facebook posts he seems to have been living his life normally. On the other hand, by reference to the accounts he has given to the experts and by reference to his presentation in the witness box he is a broken shell of a man unable to do almost anything”.

In respect of the defendant’s application under section 57 Criminal Justice and Courts Act 2015 for the entire claim to be dismissed, the judge adopted the approach of the High Court in LOGOC v Sinfield [2018] EWHC 51 (QB) and asked himself whether the claimant had “acted dishonestly… …and that he has thus substantially affected the presentation of his case… … in a way which potentially adversely affected the defendant in a significant way”.

Perhaps unsurprisingly, in circumstances where judge found the claimant had “deliberately fabricated the vast majority of the claim” and that the genuine element was worth just £4,500, he answered the question in the affirmative and dismissed the entire claim.

Jeff Turton is an Associate at national law firm Weightmans LLP

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