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Legal Mind Case and Commentary No 21: To convince or deceive? The analysis of reliable and realistic evidence - Koch HCH, Mushati D & Francis A

24/07/19. This is the twenty-first in a series of Case reports and Commentaries from Dr Koch and colleagues.

Case: Spencer vs. Ashwell Maintenance Ltd (Leicester County Court, 21/2/2019)

This interesting case was reported by two eminent legal authors (G. Exall and B. Hartley), following a LinkedIn post provided by barrister A. Mckie.

The claimant was injured working on gas installations, falling four foot down a hole, injuring his ankle. This allegation was withdrawn shortly before the defendant’s witness gave evidence. The defendant’s case was that the action should be dismissed because of the claimant’s “fundamental dishonesty”.

The defendant relied on surveillance evidence and the claimant’s appearance in filming for a TV programme, showing the claimant undertaking various DIY activities without difficulty.

The judge in this case made several comments about the evidence presented and the style of its presentation as following: -

  1. The evidence was characterised by contradictions throughout

  2. The evidence was characterised by hostility to the claimant by the Defendant’s representatives and the medical experts

  3. Reliance on witnesses who were not present at the index incident

  4. Much witness evidence (for the Defendant) actually supported the Claimant’s evidence

  5. ‘Bad faith’ defendant witness evidence was inaccurate and unreliable

  6. Critical of expert medical evidence in that:

    1. Erroneous references to another patient’s notes in report

    2. Lack of reasoning provided for errors made

    3. Lack of rigour in undertaking a proper analysis of material available for report preparation

    4. Contradictions in oral evidence

    5. Pejorative assessment of opposing expert’s evidence

  7. Contradictions in the claimant’s evidence (e.g. surveillance evidence; details of holidays)

The judge observed that there were objective signs of physical injury and “acceptable explanations” about limitations on the claimant’s working abilities.

The Judge concluded as follows:

  1. Not a case of fundamental dishonesty

  2. Not outright faking of pain but an element of exaggeration and overstatement of his difficulties

  3. The claimant genuinely believed himself to be more significantly disabled by his continuing pain than, objectively, was the case. Exaggeration or embellishment with mixed motives of attempting to convince or deceive is not fundamental dishonesty

  4. Claimant was capable of putting on a show for the medical experts and it was necessary to consider carefully whether the exaggeration represented an attempt to convince or deceive the medical witnesses – he found the former i.e. attempt of convince

  5. His conduct does not amount to justifying dismissal of the claim (in accordance with the principles outlines in the Summers v. Fairclough case).

In conclusion, the judge was not satisfied that the grounds were established for striking out the claim pursuant of section 57. He also found that if the claim were dismissed the claimant would suffer substantial injustice.

Commentary

This carefully articulated and thought-through case raises interesting aspects of how to assess the reliability of both the claimant and defendant evidence and motivations.

Unlike other cases (r13. London Olympic Committees v. Sinfield (2017)) discussed in an earlier Legal Mind Case and Commentary (Koch, Bowe, Strachan and Day (2018) where assessed dishonesty lead to the whole claim being struck out, this case involved the judge criticising aspects of both claimant and defendant evidence (inconsistency; questionable motivation) and style (perjorative language).

The judge focused on aspects of conscious exaggeration (for financial gain) versus unconscious magnification (for convincing others of painful/distressing experience), the latter being reinforced by a belief that the claimant was not being believed by the defendant. He found, quite correctly, that during the process of litigation this type of unreliability can be common and needs to be logically understood rather than resulting in a rapid erroneous conclusion of deception.

This case and commentary need to be considered within the wider context of reliability, truthfulness and logicality in the current litigation landscape in terms of how a case is examined and presented from the start and how it is dealt with by the court.

In an excellent paper by Payne J (2019), the definition of fundamental dishonesty was examined in several cases:

-Howlett v. Penelope Davis

-Ageas Insurance Ltd (2017) EWCA Civ.

-Molodi v. Cambridge Vibration Maintenance Service. EWHC 1288(QB)

-Gosling v. Hailo (29/4/14)

In the third of these cases above, it was generally held that the claimant should not be deprived of damages if there is dishonesty on collateral issues (i.e. minor, self-contained), rather than at the root of the substantial part of the claim or whole of the claim.

It appears that there is a dimension of unreliable evidence which goes from Fraud to Fundamental Dishonesty to Partial Dishonesty to Unconscious Magnification. The former (stage 1) is for financial gain, the latter (stage 4) is to convince and establish experience of pain, distress and reduced ability (see Figure 1 below).

This implies that each stage, if evidenced, should be treated differently. In each stage however, evidence will, in all probability, be apparent as the case proceeds. There needs, according to Payne, to be some balancing by the court to analyse the reliability and consistency of the evidence put forward. The court, according to Payne, should not immediately support that a claimant is dishonest unless proven otherwise.

The Way Forward

It is encumbent on practitioners and researchers in the legal field of reliability and honesty adjudication to develop “rules” to guide the Court (judiciary; barristers; lawyers and experts) in how to identify unreliability. These rules will encompass: -

1. Claimant’s knowledge or belief as to the facts

2. Levels of exaggeration when presenting information (medical or otherwise)

3. Attitude and style of action by the defendant which adversely affects claimant motivation.

Current field research is being carried out by the first author to develop and articulate more fully the four stages on this unreliability discussion, and include clear examples of what these stages actually represent behaviourally.

This will help lawyers and experts alike both have a better understanding of how and why these stages differ, and how experts can assess and handle these different presentations.


Figure I. Dimension of Evidential Reliability

figure1

 

 

Authors

Prof. Hugh Koch, Dr David Mushati and Dr Ashley Francis

Professor Koch is visiting professor in Law and Psychology at Birmingham City University (www.cv.hughkoch.com).

References

Case: Spencer Smith v. Ashwell Maintenance Ltd (Leicester County Court, 21/1/19)

Exall G (2019) Civil Litigation Brief. Wordpress.com/2019/02/16

Koch HCH (2018) From the Therapist’s Chair to Courtroom: The Psychology of Tort Law. LCB Publishing. Manchester

Koch (2016) Legal Mind: Contemporary Issues in Psychological Injury and Law. Expert Witness Publications. Manchester

Koch HCH, Bowe J, Strachan R and Day S (2018). Fundamental Dishonesty: Honest Claimants have nothing to worry about. Legal Mind Case and Commentary No. 18. PIBULJ. 3/18

Payne J (2019) Truth or Lies. PI Focus. 4/19

Previous commentaries have covered:

HCH Koch, Browne G and Medley A (2018). Expert Opinion Change in Joint Statements. Legal Mind Case No. 19. PIBULJ. 10/18

Koch HCH, Laraway A, Pelser C and Lamswood S (2018). Assessing Distress Post-Cyber Breaches. Legal Mind Case No. 20. PIBULJ. 10/18

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