PI Brief Update

Senay & Anor v Mulsanne Insurance Company Ltd [2024] EWCC 12 - Philip Matthews, Temple Garden Chambers

21/11/24. Date of judgment: 24 May 2024

How does a finding of fundamental dishonesty in respect of a claimant’s personal injury claim impact their right to recover damage for property damage to their vehicle? This was the question before Charman J in Senay.

The case arose from a road traffic accident. The Claimant was a taxi driver. There was a collision between his vehicle and that of the Defendant’s insured. Liability was in dispute. The Claimant brought a claim for personal injury. He also claimed for damage to his vehicle, its recovery and storage, and in respect of credit hire.

At trial, Charman J ruled that the Claimant succeeded on liability, and he was entitled to damages in respect of his vehicle repairs (albeit not for credit hire nor recovery/storage). However, the Claimant’s personal injury claim was found to be fundamentally dishonest.

There was disagreement between the parties following the judgment as to whether the fundamental dishonesty finding in respect of the personal injury claim meant that the whole claim, including other heads of loss, should be dismissed.

The dispute turned on the proper construction of section 57 of the Criminal Justice & Courts Act 2015. Charman J noted that there were no definitive higher court authorities on this question, and therefore he embarked on his own statutory analysis (§16): - 

“Section 57 applies to claims which include a claim for damages for personal injury, which is Mr Senay's claim; and is engaged when the court finds that there has been fundamental dishonesty in respect of the personal injury claim, as I did in Mr Senay's case. The section then provides that the court must dismiss Mr Senay's personal injury claim unless he would suffer substantial injustice thereby. It notably does not provide that parts of his claim other than the primary claim, (being the personal injury claim), must be dismissed. This is because the section defines the primary claim as the claim for damages for personal injury and then provides that it is the primary claim which is to be dismissed where fundamental dishonesty is found to be present.”

Ultimately, Charman J held that it was only the Claimant’s personal injury claim which fell to be dismissed following his finding of fundamental dishonesty, and the claim for vehicle damage remained intact.

In support of his construction, Charman J looked at relevant parliamentary debates. The Government had rejected a specific amendment which would have had the effect contended for by the Defendant. Lord Faulks stated: -

The types of loss that would be caught by the amendment arise primarily in motor accident claims, and in practice payments for such losses are generally made up front by the Claimant's insurer, and are then recovered by them from the Defendant's insurer in the event that negligence is admitted or proved. This means that the amendment could affect subrogated rights between insurers, and could operate to the disadvantage of the Claimant's insurer, who would find it much more difficult to recover such sums. That might in turn have the undesirable consequence of making insurers less inclined to make payments in respect of this kind of loss to genuine victims of accidents for whom, for example, the rapid replacement of a vehicle could be essential.

Being the first circuit judge-level authority on this point in the wider battleground of fundamental dishonesty / credit hire, Senay will no doubt become essential reading for civil practitioners.

https://www.bailii.org/ew/cases/Misc/2024/CC12.html

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