News Category 3
A Dishonest Mistake: Conscious Exaggeration and Fundamental Dishonesty in Uchechukwu Atuanya v Ministry of Defence - Georgina Pressdee, Temple Garden Chambers
28/04/26. On 30 March 2026, Rory Dunlop KC, sitting as a Deputy High Court Judge, handed down his judgment in Uchechukwu Atuanya v Ministry of Defence [2026] EWHC 758 (KB). The sole issue for determination was whether the Claimant had been fundamentally dishonesty (FD) within the meaning of CPR r44.16(1).
Background
The Claim was for damages for a non-freezing cold injury (NFCI) and associated psychiatric issues sustained while serving in the Army. The Claimant had been medically discharged in 2013 after 14 years of service. The neurological experts agreed that the Claimant had a mild NFCI but that it would have had a negligible impact. However, there was also evidence that the Claimant suffered from a psychiatric illness.
Permission was sought to amend the Defence to include an allegation of FD following the disclosure of covert surveillance evidence. The footage showed that the Claimant had attended his medical appointments heavily clad and limping with an unusual gait but that these features were not present on another day in similar conditions. In their subsequent (second) joint report, the neurological experts expressed concern about malingering. A notice of discontinuance was served but the trail was maintained in order to determine FD. The Defence experts attended and were cross-examined by the Claimant, who appeared in person.
Ruling: The Claimant was Fundamentally Dishonest
It was posited by one expert that some patients exaggerate to convince – they are so eager to convey their suffering that they say thing they know are not true. The Judge considered this dishonest for two reasons: (1) the ordinary person would consider telling untruths dishonest, especially in a claim for money; (2) including such individuals within QOCS would flout its purpose – to encourage honesty.
The Judge went on to consider that the Claimant was an unreliable witness but this did not necessarily make him dishonest. Nevertheless, the Claimant had exaggerated his symptoms and, whilst those exaggerations were not calculated, some of them were conscious. The Claimant had exaggerated to convince; that was dishonest.
The Claimant had not been dishonest in describing his psychological difficulties. There was overwhelming evidence of a genuine mental illness, including longstanding reporting and several years of anti-depressants. This could be reconciled with the surveillance evidence. However, the Claimant did consciously exaggerate his need for warm clothing both by deliberately overstating that need and attending his medical examinations heavily clad. That was revealed by the surveillance evidence which showed him wearing a t-shirt in similar conditions. His particular sensitivity to cold was fundamental to his claim, which included £150,000 for disadvantage on the open labour market due to his inability to work in a cold environment. The Claimant was held to be fundamentally dishonest on that basis. It was therefore unnecessary to reach a decision on other allegations of FD.
Comment
This decision is a reminder that dishonesty is an objective standard. It is also a warning to Claimants that conscious exaggeration can result in a finding of FD, even if it is not calculated. Whether a Claimant has consciously or unconsciously exaggerated may be a difficult to decipher, but the cost consequences of that finding are likely to be significant.
Image ©iStockphoto.com/ilbusca
Smile, you’re on camera! Surveillance footage and the perils of defendants sitting on their hands for too long - Michael Brooks Reid, Temple Garden Chambers
24/04/26. Michael Brooks Reid comments on the recent High Court decision in Silverdale Tours (Nottingham) Ltd v Daniels [2026] 3 WLUK 160, in which the defendant was not permitted to rely on surveillance footage served late.
Facts
The claimant suffered spinal and neck injuries in a road traffic accident. Liability was admitted by the defendant, but quantum remained in dispute.
The case had reached joint statement phase, and the spinal, pain management and psychiatric experts agreed that the claimant had sustained significant injuries to his neck and lower back, that improvements were expected within a year, and that his injuries would not affect light physical work.
The defendant obtained covert footage of the claimant at the gym lifting dumbbells above his head, but it did not serve the footage, instead requesting further information from the claimant under CPR Part 18. The final schedules of loss were significantly apart with the Claimant seeking around £500,000 and the Defendant contending for damages of £47,000.
During the trial window but before a trial date was set, the Defendant made an application to rely on the surveillance evidence that it had secured six months earlier, on the basis that it was relevant to issues at trial.
First instance decision
The judge refused the Defendant’s application on the grounds that the surveillance evidence was not inconsistent with the Claimant’s case and was therefore of very limited relevance, and that the application had been made too late.
The Law
In the King’s Bench Division, Tipples J set out the relevant principles of law:
- Where surveillance evidence genuinely undermines a claimant’s case to the extent that it would substantially reduce the award of damages, it is usually in the overall interests of justice to admit it and allow the defendant to cross-examine by reference to it, as long as it does not amount to trial by ambush: Rall v Hume [2001] EWCA Civ 146, [2001] 3 All E.R. 248, [2001] 2 WLUK 239 applied.
- When considering whether it would be an ambush, the question is whether the circumstances in which the evidence was disclosed were such that a claimant had a fair opportunity to deal with it, Douglas v O'Neill [2011] EWHC 601 (QB), [2011] 2 WLUK 337
The Decision
Tipples J dismissed the appeal, finding that the decision to refuse permission to rely on the surveillance evidence was a case management decision within the generous ambit in which reasonable decision makes may disagree.
Tipples J agreed with the judge that the footage added little, and that introducing it at the stage of proceedings after joint statements were prepared, particularly when the footage had been available six months earlier, was not justifiable. There had been no explanation offered for that delay, with Tipples J finding that it was “telling”.
The judge was entitled to decide that it would not be in accordance with the overriding objective to admit the evidence, and that it was irrelevant that the application had been made before the trial date was set.
Comment
Surveillance footage can be an important weapon for defendants in high value personal injury claims, allowing them to cross-examine claimants and their medical advisors by reference to incontrovertible evidence. Where footage shows that a claimant has significantly exaggerated their symptoms, it can be hugely damaging to their credibility.
Where footage is not truly inconsistent with the claimant’s case, however, it is likely to be of less evidential value, and defendants need to decide how and whether to deploy it. Where a defendant sits on such evidence for too long (perhaps in the hope of encouraging under-settlement by making the claimant fear the existence of footage worse than it actually is), they risk not being permitted to rely on it at all.
Image ©iStockphoto.com/Kuzma
On the Right Track: High Court Rules on Pre-issue Settlements and CPR r46.13(3) - Georgina Pressdee, Temple Garden Chambers
27/03/26. On 18 March 2025, Costs Judge Nagalingam handed down his Judgment in Smith v Wigan [2026] EWHC 660 (SCCO). The sole issue was whether the Costs Officer should have restricted the Claimant’s costs to those recoverable on the Small Claims Track pursuant to CPR 46.13(3). This required the Court to determine whether, had the Claim been issued, the matter would have been allocated to the Small Claims Track.
Background
The underlying Claim was a landlord and tenant dispute over repairs and associated damages for the Claimant’s reduced living conditions whilst the repairs remained outstanding. The Claim settled prior to issue for £1,000 in damages, a promise from the Defendant to complete the repairs and to pay the Claimant’s reasonable legal costs, to be assessed if not agreed. Proceedings were then issued for the purposes of costs only.
Multiple offers were exchanged in the run up to the Defendant’s final offer, which was ultimately accepted. Initially, the Claimant made an offer of £1,400 in damages, the repairs and her reasonable and proportionate costs, subject to detailed assessment if not agreed. This was rejected by the Defendant on the basis that “... the value of the repairs in the claim are below £1,000 and the claim should be allocated to the small claims track”. The Defendant counter offered £500 in damages, the repairs and small claims costs. However, all subsequent offers from the Defendant were on the basis that the Defendant would pay the Claimant’s reasonable legal costs, to be assessed if not agreed. Notably, the final offer from the Claimant was for damages in the region of £1,100 and came with an explanation of why it was anticipated that, if the matter was litigated, the Claimant would expect an award in the region of £1,300.
Ruling: Appeal Dismissed
CPR r46.13(3) provides that, “Where the court is assessing costs on the standard basis of a claim which concluded without being allocated to a track, it may restrict those costs to costs that would have been allowed on the track to which the claim would have been allocated if allocation had taken place.” Costs Judge Nagalingam made two important observations about this provision:
- It is discretionary.
- It invites a hypothetical analysis of what would have happened had the Claim been allocated. It is not framed in terms that require only the settlement sum to be taken into account.
Costs Judge Nagalingam then considered CPR r26.9(1)(b) which provides that the Small Claims Track is the normal track for a tenant seeking an order for repairs or other work only if both the cost of the repairs and the value of any other claim for damages are (respectively) estimated at not more than £1,000.
Costs Judge Nagalingam found no explanation for why he should accept that the Claim would be allocated to the Small Claims Track, except for the agreed settlement sum. There was no reference to the settlement sum in CPR r46.13(3). Had the legislature intended it to be determinative, it would have been mentioned. Accordingly, he rejected the Defendant’s argument that the settlement sum alone dictated the value of the Claim. Instead, he was satisfied that, had proceedings been commenced, the value of the Claim for damages would have reasonably been pleaded at more than £1,000. As an aside, he observed that the Defendant’s offers had given the impression that no fixed costs argument would be advanced at the detailed assessment stage and that, if permitted, the Defendant’s conduct would imperil future agreements due to a lack of trust between the parties or result in offers designed to fit within or exceed the threshold for allocation to the Small Claims Track by only a few pounds.
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Supreme Court revives 'lost years' claims by young child claimants: CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5 - Michael Brooks Reid, Temple Garden Chambers
25/03/26. On 18 February 2026, the Supreme Court handed down a landmark judgment on the recoverability of “lost years” damages by young child claimants. By a majority of four to one, the Court overruled the Court of Appeal’s decision in Croke v Wiseman [1982] 1 WLR 71 (“Croke”), which had barred such claims for nearly half a century.
Facts
The claimant, CCC, suffered a severe hypoxic brain injury during her birth in 2015, resulting in severe spastic cerebral palsy. The defendant NHS Trust admitted clinical negligence. At trial before Ritchie J, the parties had agreed that CCC’s life expectancy was reduced to 29 years, and that but for her injury she would have gained qualifications, worked in a similar line to her mother or aunts until 68, and received a pension. Lifetime loss of earnings to age 29 was agreed at £160,000.
The claimant also pleaded £823,506 in respect of “lost years” damages, the pecuniary losses attributable to the years of life the defendant’s negligence had taken from her.
It was common ground that Ritchie J was bound by Croke to dismiss that head of loss, but given the conflicting authorities on the general principle, he granted a leapfrog certificate direct to the Supreme Court.
Legal Background
The recoverability of lost years damages was authoritatively established by the House of Lords in Pickett v British Rail Engineering Ltd [1980] AC 136 and confirmed in Gammell v Wilson [1982] AC 27.
In Pickett, four of the five Law Lords had expressly rejected any requirement for a claimant to have dependants to recover such damages.
In Croke, however, the Court of Appeal held that lost years damages could not be awarded to a young child. Griffiths LJ reasoned that a catastrophically injured child had no dependants and little prospect of ever having them, so the “compelling social reasons” underpinning Pickett were absent. Shaw LJ, while acknowledging a “philosophical anomaly”, agreed. Lord Denning MR dissented on yet broader grounds, refusing even lifetime earnings award to young children as too speculative.
Croke was criticised in Iqbal v Whipps Cross University NHS Trust [2007] EWCA Civ 1190, where the Court of Appeal considered it inconsistent with Pickett and Gammell but considered itself bound by it. That case settled before reaching the Supreme Court.
The Decision
Lord Reed (with whom Lord Briggs agreed) delivered the leading judgment, with concurring judgments from Lord Burrows and Lord Stephens. Lady Rose dissented.
The majority held Croke wrongly decided on two grounds.
First, conditioning lost years damages on the existence of dependants is irreconcilable with...
Image: public domain from https://pixabay.com/en/neurons-brain-cells-brain-structure-440660/
Court of Appeal Settles the Debate: Liability Only Part 36 Offers on the Fast Track - Georgina Pressdee, Temple Garden Chambers
23/01/26. The Court of Appeal had handed down a unanimous judgment in Smithstone v Tranmoor Primary School [2026] EWCA Civ 13 providing clear guidance on when a liability only Part 36 offer will be effective on the fast track.
Background
The Claim was brought by a child who had suffered a minor injury when his fingers became trapped in a door. It originated in the Low Value Fixed Costs regime and was eventually allocated to the Fast Track following the Defendant’s denial of liability and allegation of contributory negligence.
The Claimant made two offers, both of which were rejected. A Part 36 Offer to settle liability 90:10 (pre-issue) and a WOP offer to settle for £3,500 (post-issue).
Ruling of DDJ Khan
The Claim settled on the door of Court when the Defendant’s witness failed to attend. £2,650 was agreed and approved by the trial Judge (DDJ Khan). DDJ Khan awarded fixed costs on the basis that neither offer engaged CPR 36.17.
Ruling of HHJ Baddeley
The Claimant appealed, but HHJ Baddeley considered that he was bound by the judgment of Collins-Rice J in Mundy v TUI UK Ltd [2023] EWHC 385 (Ch) that Part 36.17 does not apply to liability only offers.
The Appeal
The Claimant appealed again, arguing that the decision in Mundy was per incuriam and should be overruled. In addition, or in the alternative, the Claimant argued that it would be unjust to confine him to fixed costs.
Ruling: Appeal Dismissed
The Court of Appeal narrowed the issues to four questions.
1. Was there a judgment?
This question was answered unequivocally: an N24 ordering the Defendant to pay the Claimant’s costs and damages is both a judgment and an order and, “any attempt to distinguish between the two terms in describing it is misconceived.”.
2. Can a 90:10 offer engage the provisions of CPR 36.17(4)?
The Court considered the majority judgment in Huck v Robson [2002] EWCA Civ 398, which held that a 95:5 liability offer was effective for the purposes of Part 36 where the Defendant was found 100% liable. This decision had not been cited to Collins-Rice J in Mundy and the factual context of Mundy was also important. The Claimant in Mundy had offered to split liability 90:10 or settle for £20,000. The Judgment obtained was below even the Defendant’s Part 36 offer of £4,000. Unsurprisingly, the Claimant did not benefit from CPR 36.17 in those circumstances. However, insofar as Collins-Rice J had suggested (obiter) that a 90:10 liability offer is ineffective as a matter of principle, Mundy was overruled:
“Whether litigation is complex and of high value, or straightforward and of relatively modest value, the courts should, and the Civil Procedure Rules do, encourage settlement of specific issues where the case as a whole cannot be settled. In a case where liability is to be tried before quantum the benefits of a liability-only offer in saving costs and court time are obvious. But even in a fast track case where all contested issues will be resolved by a district judge or deputy district judge in the course of a single hearing, liability-only or quantum-only offers are still to be encouraged.” [34] per Bean LJ
3. On these facts, was the outcome “at least as advantageous to the Claimant” as his Part 36 offer?
Because liability had neither been admitted nor determined, the Court was unable to conclude that the outcome was more advantageous than the Claimant’s 90:10 offer. Accordingly, CPR 36.17(4) did not apply and the appeal failed.
4. Would it be unjust to confine the Claimant to fixed costs or require the Defendant to pay additional sums?
The Court reminded itself that the burden of showing that the usual Part 36 consequences are “unjust” is a “formidable obstacle” (Webb v Liverpool Women’s NHS Foundation Trust [2016] EWCA Civ 365 per Stanley Burnton LJ) and concluded that the result is not unjust for either party, whether CPR 36.17 is successfully engaged or not.
Comment
For a party sitting on a favourable liability only Part 36 offer, the key takeaway is to ensure that any settlement specifies how liability has been split in order to reap the rewards of CPR 36.17.
Image ©iStockphoto.com/SolStock
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