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The fight against section 57 fundamental dishonesty: Ed Ford (aka Edward Leonard Batey) v Lilachall Limited - Cristina Parla, Roythornes Solicitors

30/07/21. I recently acted for a client in connection with his personal injury claim which arose as a result of a slipping accident on private property.

The facts of the case are relatively straightforward, but the approach adopted by the defendant caused significant delays. The claim took over 5 years to resolve and had to go before the court for determination on liability and quantum.

Background

The claimant lived in an apartment on the defendant’s premises. Even though the apartment was outright owned by the claimant, the Estate was managed privately by the defendant. Residents (including the claimant) paid a monthly service charge which included funding for repairs and general maintenance of the grounds and communal areas.

The facts

On the evening of 01 January 2015, the claimant went outside to take some rubbish to the communal bins. It was a cold dark night and when he reached the top of a sloping pathway on the Estate, he slipped and fell on moss covered ground.

The claimant took photographs of the pathway shortly after the accident occurred. He also took photographs several months apart to show that no steps had been taken to clear the path of moss which had worsened over time.

As a result of the accident the claimant suffered a nasty ligamentous injury which affected daily living and prevented him from training at the gym. The claimant required care and assistance from his wife, and using his own knowledge in health and fitness, he was able to do physiotherapy exercises at home.

The claimant brought a personal injury claim under the relevant provisions of the Occupiers’ Liability Act 1957. The said Act imposes a duty of care to ensure that the occupier must:

take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there."

No stone was left unturned and the defendant denied liability for the claimant’s accident and pursued a section 57 defence.

What is section 57?

Section 57 of the Criminal Justice and Courts Act 2015 enables the court to strike-out any personal injury claim if the claimant is found to be fundamentally dishonest and the dishonesty goes to the heart of the claim.

In this case, the defendant investigated and challenged the claimant on every point which started from his Claim Notification Form right through to his identity, the circumstances of the accident and the injuries suffered. There were a few explainable inconsistencies, but the defendant was determined to pursue the claimant.

Documents considered in the process of the claim included medical records, gym records, identity related documents and previous antecedents.

The claimant had a past criminal conviction for perverting the course of justice in an unrelated matter and the defendant sought to rely upon this as a means of attempting to show that he was not of credible character. The defendant pursued a heavy line of attack and threatened committal proceedings should the court find that the claimant had been fundamentally dishonest.

Why is section 57 significant?

There has been a flurry of fundamental dishonesty defences since the commencement of section 57 of the Criminal Justice and Courts Act 2015. It is common theory between claimant personal injury solicitors that defendants are using section 57 as a way and means of recovering their costs.

If a court were to find that a claimant had been fundamentally dishonest, the claim can be struck out in its entirety and the claimant ordered to pay costs. This means that the claimant would lose the benefit of Qualified One-Way Costs Shifting (QOCS) which would normally prevent a defendant from being able to recover their costs of successfully defending an action against them.

Solution and outcome

I prepared the claimant’s case against the defendant which was heard at the County Court in Cambridge on 03 March 2021. The claimant was represented by Cassandra Williams of Ropewalk Chambers.

I am pleased to report that the claimant was successful at trial and the court did not make a finding of fundamental dishonesty. This was a huge victory for the claimant, especially as the extent of the defendant’s conduct made him feel on trial for the accident - not the other way round.

The court accepted that the claimant had slipped on mossy ground and commented that it is logical the defendant’s duty should extend to clearing moss which can be particularly hazardous in winter when a pathway is wet. This duty engages section 2(2) of the Occupiers’ Liability Act 1957 and in the absence of any adequate system which deals with inspection and maintenance of the said pathway, the court found that there had been a breach of the said Act.

In respect of the allegations of fundamental dishonesty, the court commented that the defendant was right to put points in issue as it goes to the claimant’s character but were satisfied that the claimant was credible and reliable. The Judge specifically commented that just because the claimant has been previously dishonest in one context does not mean that they are in another.

Costs

Good news on costs - the court found that whilst the defendant was right to explore and challenge the claimant’s case, the approach taken had been “heavy-handed”, particularly the threat of committal proceedings.

The defendant’s heavy-handed approach was not reasonable or proportionate to the value of the personal injury claim. Additionally, the threat of committal proceedings was enough to overcome and defeat the defendant on the exceptional circumstances argument.

The defendant was therefore ordered to pay the claimant’s costs on an indemnity basis.

Finally…

This case clearly demonstrates that whilst any allegations of fundamental dishonesty must be taken seriously, it is important to remember that the dishonesty must go to the heart of the claim and a previous criminal conviction is wholly irrelevant.

Further, there has previously been little guidance on what might constitute as ‘exceptional circumstances’ in order to escape the fixed costs regime, but a lesson from this case is that is it possible to beat the exceptional circumstances argument, if you can show that the defendant’s tactics were heavy-handed and disproportionate to the value of the claim.

This article was originally published by Roythornes Solicitors at https://www.roythorne.co.uk.

Image: cc flickr.com/photos/automotocycle/4364302074

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