News Category 2
Morris v Williams [2025] EWHC 218 (KB) - Philip Matthews, Temple Garden Chambers
19/03/25. In Morris v Williams [2025] EWHC 218 (KB), District Judge Dodsworth considered whether a letter from the Claimant’s former solicitor, which contained proposals to settle allegations of fundamental dishonesty, could be adduced as evidence.
The Claimant was involved in a road traffic accident in July 2018, when he was injured while riding a motorcycle hit by the Defendant’s vehicle. Liability was admitted, but the Defendant contended that the Claimant had exaggerated his injuries and acted dishonestly in presenting his case.
The Defendant sought to introduce a letter sent by the Claimant's previous solicitors as evidence, despite it being marked ‘without prejudice’. The Defendant highlighted that the usual rule against ‘without prejudice’ correspondence being admissible was not absolute and could be set aside if the material in question demonstrated ‘unambiguous impropriety’. In this case, the Defendant argued that the letter revealed the Claimant's admission of dishonesty, thus falling under the exception.
The Claimant opposed the letter’s admission. The Claimant argued that the letter did not contain a clear admission; and that, even if it did, it should not be admitted due to the narrow application of the exception.
DDJ Dodsworth concluded that the letter did contain an explicit admission of dishonesty and that allowing it to be excluded would allow the Claimant to benefit from presenting a false case. The court ruled that the letter should be admitted as evidence, as it met the criteria of the ‘unambiguous impropriety’ exception, allowing the public policy interest in preventing fraudulent claims to take precedence over the usual protection for settlement discussions.
This judgment serves as a salutary warning to anyone assuming that the words ‘without prejudice’ provide a full and automatic shield against disclosure of the correspondence.
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Jinking horses, Animals Act claims and dishonest exaggeration - Andrew Ratomski, Temple Garden Chambers
17/03/25. Hazel Boyd v Debbie Hughes [2025] EWHC 435 (KB)
Date of judgment:> 28 February 2025
Liability, quantum and fundamental dishonesty were in dispute in this claim for personal injury. The Claimant was employed by the Defendant as a rider and stable hand, and fell from a cantering horse sustaining a serious injury to her right arm. The Defendant was a racehorse breeder and trainer based in Tonyrefail in Wales with 35 horses. Unusually the claim was brought under section 2(2) of the Animals Act 1971 (“the 1971 Act”) with no claim in negligence and so the issue was one of strict liability under the bespoke regime of the Act.
Facts
The accident happened whilst the Claimant was riding “Foxy” into a canter on the gallop. Approximately 150 yards into the exercise, the horse moved to his right with the nature, extent and causes of the movement hotly disputed. The movement caused the Claimant to fall off. She sustained a dislocation and articular fracture to her right elbow.
Liability
The judge held that Foxy was not restrained within the meaning of subsection 2(2)(a) of the 1971 Act. The judge also found that a sudden jink or shy whilst a horse was moving was not likely to unseat a rider, it was not a reasonable expectation that a rider would fall off and was relegated to a “mere possibility”.
He also held that if a person falls from a moving horse as a result of shying/jinking, it is likely that they would suffer injury. The judge then considered whether the damage or its severity was due to the characteristics of the animal under subsection 2(2)(b) although the Claimant was in difficulties given the judge found the movement of the horse relied on was not due to a “perceived threat”. The judge considered the characteristic was a general, normal characteristic of horses and so the claim failed on liability.
Fundamental Dishonesty
The case on fundamental dishonesty centred on what the Claimant had told medical experts, notably the Defendants’ experts, and also on sections of her witness statement. It was found that the Claimant had exaggerated her symptoms to two experts, failed to disclose her return to football and rugby in the same year as the accident and that she had been untruthful in saying she could not throw darts with her right hand.
Dishonesty was established, the real argument was about whether it was “fundamental” and the judge recited the well-known authorities on this aspect of the analysis at length. There were points either way. The judge held each counsel’s interpretation had been too extreme and that it was difficult to see how the dishonest exaggeration inflated the value of the claim other that in respect of a PSLA award and so the “core or heart of the claim” remained unaffected.
Quantum
PSLA was assessed at £40,000 and a further award of £2,750 was made for loss of congenial employment. I will not summarise other findings on Special Damages here.
Procedural issues
The judge was highly critical of the decision to issue the claim in the High Court and in London, and queried why a transfer had not been sought once proceedings were underway and its value became clearer. He was deeply unimpressed with the case management overall (and each party’s justification for the course taken) and considered that liability should have been determined as a preliminary issue. This course would have saved the significant expense of a quantum trial and the judge observed that split trials were common to many of the decisions on the 1971 Act cited during this trial. The judge gave guidance that “very careful consideration” should be given to CPR PD 7A para. 2 in respect of whether issuing a personal injury valued at less than £500,000 could be justified (nothing also that Cardiff District Registry was a preferable option were that the case).
Discussion
This case is another example of judicial criticism of the workability of the liability regime under the Animals Act 1971 and the usefulness of the decision as a precedent is limited to similar actions. The decision on fundamental dishonesty is of broader significance to personal injury practitioners. Boyd should be seen as a rather helpful guide for seriously injured Claimants responding to surveillance disclosure and also of possible arguments to deploy where there is debate about the scope of proven exaggeration and the reasons for it.
https://caselaw.nationalarchives.gov.uk/ewhc/kb/2025/435?query=Hazel+Boyd+Debbie+Hughes
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Omanovic v Shamaazi Ltd & Ismael Abdela Mohammed [2025] EWHC 110 (KB) - Andrew Ratomski, Temple Garden Chambers
24/02/25. Date of judgment: 21 January 2025
Introduction
An important point of civil procedure recently arose in this claim for breach of contract and tortious conspiracy which can often arise in multi-party personal injury litigation, especially where allegations of fraud or unlawful means conspiracy are made against several parties, namely the admissibility of settlement terms when comprising a claim against some but not all claimants or defendants. The decision is also useful when assessing the merits of making or accepting settlement offers that cut-off parties and how that might impact the evidential matrix for the remaining disputed issues. This case highlights that previous settlements are risky ground for making allegations of dishonesty and may limit the scope for cross-examination on those issues at trial.
Issue
The Defendants sought an order that evidence of the terms by which a second and third claimant’s claims were comprised be declared as inadmissible evidence at the trial of the (remaining) claimant’s claim for want of relevance or to be excluded under Part 32. The claimant sought evidence of the fact of settlement and its quantum because he alleged the second defendant was not only in breach of contract but dishonest and had made assertions in his witness evidence said to be inconsistent with the compromise reached. It was said these topics and his honesty would be explored in cross-examination.
The proceedings had originally been issued by three claimants on 12 June 2023. The claims for breach of contract and conspiracy related to a charitable giving venture focused on donations that are made during the last ten days of Ramadan that often overwhelm donors and charitable organisations due to the volume of gifts at the time.
Each claimant had been promised...
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Smith -v- AXA Insurance UK PlC & Spectra Drive Limited (24th December 2024) - Philip Matthews, Temple Garden Chambers
23/01/25. Smith is the latest decision in the long-running trench warfare between credit hire companies and defendant insurers on the issue of non-party costs orders (NCPOs). Despite the hire charges in issue being just £11,809.94, both sides instructed leading silks, suggesting that the principle at stake is much more important than the sums involved.
Background
The Claimant’s vehicle was damaged in an RTA, for which liability was admitted. She contacted a claims management company, Spectra, that arranged for her to hire a replacement vehicle. She subsequently made a claim for damages which included hire charges in addition to PSLA.
The Defendant highlighted that the Claimant had insured another vehicle within 10 days of the accident. This, it was submitted, established that she did not actually need a hire car for three months.
The Claimant discontinued her case.
The Defendant’s Application
The Defendant subsequently made an application seeking to set aside QOCS protection on the grounds that the Claimant had been fundamentally dishonest. A non-party costs order was also sought against the claims management company.
The District Judge Decision
At first instance, the allegations of fundamental dishonesty were rejected by the Court. In summary, the District Judge found that the claimant had insured a car after 10 days but it was not available to her until she had received the benefit of the total loss claim. She had, therefore, used the hire car for the relevant period.
The non-party costs issue was determined at a later hearing and the District Judge found that Spectra was a real party to the claim and had intermeddled in it. It was ordered that Spectra pay 65% of the costs of the claim.
The costs order was appealed.
Circuit Judge Appeal
On appeal, HHJ Gargan found that Spectra were likely to be the principal beneficiary of the proceedings. However, this is a necessary, but not sufficient, condition for the making of a non-party costs order. There were a number of factors which weighed against making an NPCO [§173-§76]: -
- There were joint causes for the litigation – the vehicle claim and the personal injury claim.
- Given the DJ’s findings that the claimant was not fundamentally dishonest, the claim would have succeeded (in least at part) had the matter gone to trial.
- Spectra had not played any part in the funding of the proceedings. It did not have a retainer with the solicitors. They did not have any day-to-day control over the progress of the litigation.
On this basis, the appeal was allowed and the NPCO was dismissed.
At the end of his judgment, HHJ Gargan made a plea for more definitive guidance from the senior courts: -
“I have spent an inordinate time considering this matter and trying to balance the various factors pointing towards and away from an NPCO. Given the appetite for litigation amongst both insurers and CHCs, it may be that judges up and down the country will have to perform similar exercises. Whilst the question must remain a matter of discretion and what is just, it would be very helpful to have clear guidance on the approach to be taken in ‘bog standard’ credit hire cases.” [§188]
Image ©iStockphoto.com/Tramino
Majid Saadati v Seye Dastghaib and Andreas Rudolf Bihrer [2024] EWHC 3336 (KB) - Andrew Ratomski, Temple Garden Chambers
21/01/25. Date of judgment: 20 December 2024.
Practitioners making hasty applications for default judgment ought to keep in mind the law of unexpected consequences. Applications for judgment in default, when not made properly, run the risk of being re-heard again and again (and again) as Saadati v Dastghaib illustrates.
Introduction
The judgment of Morris J follows a rolled-up appeal hearing challenging an order of Deputy Master Sabic KC (“the Deputy Master”) to set aside an earlier order of judgment in default made by Master Thornett (“the Master”) amongst other issues. The underlying claim concerned a loan of USD $15 million alleged to have been made by the Claimant in late 2013 for the benefit of both Defendants in relation to property development in London. The appeal judge’s handling of the application for judgment in default and the guidance he gives distinguishing applications under rule 13.2 versus 13.3 of the CPR are likely to assist practitioners applying to set aside default judgments or responding to such applications.
Default judgment and service
The court reminds practitioners of the important provisions outside Part 13 itself. By rule 24.4 where a party applies for default judgment before a defence is filed, the defending party does not need to serve its defence until the hearing of the application. By rule 3.3 the court may exercise its case management powers to make an order of...
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