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FREE CHAPTER from 'Fundamental Dishonesty and QOCS in Personal Injury Proceedings: Law and Practice' by Jake Rowley

08/02/21. Dishonest claims and dishonest claimants (or at least allegedly dishonest claims and claimants) are by no means a novel phenomenon in personal injury claims; nor is the insurance industry’s desire to identify and expose such claims and such individuals. However, the legal framework surrounding allegations of dishonesty, the frequency with which they are made, and (at least in part) the reasoning and impetus behind making them, has taken on a different complexion following the introduction of the concept of ‘fundamental dishonesty’ into personal injury litigation.

It is no exaggeration to say that for every practitioner involved in personal injury claims, a comprehensive understanding of the notion of ‘fundamental dishonesty’, both as it relates to Qualified One Way Costs Shifting (“QOCS”) and as it relates to s. 57 of the Criminal Justice and Courts Act 2015, is absolutely essential. It is simply not possible to carry on practice in this area of the law without an intimate working knowledge of these principles and how they apply in real terms.

Since ‘fundamental dishonesty’ first arrived on the scene on the 1st April 2013 as an exception to the QOCS regime, the concept has continued to develop and expand in its reach and application. Most importantly the term has been adopted within s. 57 of the Criminal Justice and Courts Act 2015; a significant piece of legislation representing a fundamental change to the law as it stood following the Supreme Court’s decision in Summers v Fairclough Homes.

Written with both claimant and defendant practitioners in mind, this book seeks to consider what it actually means to be ‘fundamentally dishonest’; to identify the relevant Civil Procedure Rules in play; to look at the costs consequences of a finding of ‘fundamental dishonesty’; to trace the origins of s. 57 and consider the wording and effect of the statutory provision; to discuss the principles expounded in the most relevant cases; to analyse the procedures and processes to be adopted when making or defending allegations of ‘fundamental dishonesty’, including how and when an application for a finding can and should be made; and to provide helpful insight and commentary from a practical perspective.

CHAPTER THREE – THE MEANING OF “FUNDAMENTAL”

The meaning of ‘fundamental’, in the context of ‘fundamental dishonesty’ has been considered in a number of cases.

Michael Joseph Gosling v (1) Hailo; (2) Screwfix Direct  (Cambridge
County Court) (29/4/2014) (HHJ Moloney Q.C.)

Gosling, the decision of a highly respected Circuit Judge in Cambridge, was the first reported case dealing with the correct interpretation of the relevant test which is to be applied.

Facts

The Claimant suffered a serious injury to his knee a result of an accident involving a ladder manufactured by the First Defendant and sold to him by the Second Defendant. He brought claims in negligence against both Defendants on the basis that his accident had been caused by the deficient construction of the ladder. His claim included a sum for general damages for pain, suffering, and loss of amenity, and consequential losses totalling £39,000 odd, including a claim for future care of £17,000. The Defendants carried out covert surveillance on the Claimant, including on the day on which he was due to be examined by the Defendants’ expert. In his witness statement, the claimant made various assertions as to his ongoing pain and disability. The Defendants subsequently disclosed the surveillance evidence to the Claimant and his experts. Inter alia, in a joint report between the parties’ experts, the doctors concluded that there was no evidence of ongoing constant knee pain, as the Claimant had reported, and that the inference to be drawn resulting from the disparity between the Claimant’s examination findings and the surveillance evidence (which suggested that the Claimant had no problem) was that the Claimant was not being honest about his symptoms and his ongoing issues.

The Claimant then served a revised Schedule of Loss which was drastically reduced in value. It totally abandoned the claim for future care. The Second Defendant indicated to the Claimant that it intended to argue that the claim was fundamentally dishonesty.

Shortly before trial, the Claimant settled his claim against the First Defendant and discontinued against the Second Defendant. By operation of CPR r. 38.6, the Second Defendant therefore automatically had a costs order arising in its favour, however subject to QOCS.

Defendant’s Application and Argument

The Defendant made an application under r. 44.16(1) to permit enforcement on the basis that the claim was fundamentally dishonest. The Second Defendant argued that the claim was dishonest in relation to the issue of liability – it was said that the Claimant was lying about the circumstances of the accident because he had advanced two different accounts of how it had supposedly occurred. It was argued that the latter account on which he subsequently relied at trial was dishonestly tailored to meet notice he had received from the Second Defendant that their expert had concluded the original version of events advanced suggested that the Claimant had failed to erect the ladder correctly and had thus caused his own accident. Importantly, it was also said that there was dishonesty in relation to the quantum aspect of the claim.

Decision of the Judge

HHJ Maloney Q.C. considered that the evidence in relation to the liability argument was not so clear that it could justly be determined on the papers without hearing oral evidence and that it was not proportionate to have a substantive oral hearing, including calling the Claimant and expert witnesses who had opined on the issue. The Judge declined to direct that there be a determination of the issue of dishonesty as it arose in relation to liability.

The issue concerning the Claimant’s claim for damages, and dishonesty in relation to quantum, was different. The Judge considered that the surveillance was “devastating”. Although the Claimant had a crutch in the back of his van, he was seen driving to a warehouse superstore and then spending the best part of an hour, walking without a crutch or other support. He was seen bending to pick up goods. He pushed the shopping trolley himself. He loaded the goods into his van. He then went to Asda and had lunch with his wife, without using a crutch. Later that afternoon he attended a medico-legal appointment with the Second Defendant’s expert. At the hospital he got out of the van, retrieved an elbow crutch from the back, and walked into the hospital using it. He had it with him throughout the appointment. He used it when emerging from the hospital and getting back into his car. The Claimant described his complaints to the expert as constant pain in the knee, worse when walking; the more he walked the more painful it became; the pain limited his walking distance; he walked with one crutch in his left hand; he normally went shopping with his wife, with him driving the car and waiting in the car whilst she did the shopping using either her wheelchair or crutches; the pain interfered with all of his daily activities. The Judge noted that such statements had been made to the doctor within 3 hours of the Claimant having spent 45 minutes walking around a shop with his wife, himself collecting goods, and pushing the trolley and taking it to the car. As a result of the Claimant’s presentation (and before seeing the surveillance), the Second Defendant’s expert had concluded that the Claimant suffered with constant pain meaning it was probably appropriate for him to receive outside help for between 1 – 2 hours/week.

It was argued on his behalf that the Claimant’s conduct, even if as a result of some degree of culpable exaggeration, did not make the claim ‘fundamentally dishonest’ as a matter of law.

HHJ Maloney Q.C. considered the meaning of “fundamental” in the context of the QOCS provisions and held as follows:

  1. […] Neither party took me to any authority on the term in question. Of course, the term “fundamental” is used in various legal contexts that are of little assistance to us here. Dictionary definitions were produced and relied upon; for example, that which was fundamental was “of, or pertaining to, the basis or groundwork of something”, “going to the root of the matter”, “serving as the base or foundation”, “essential or indispensable”.

  1. It appears to me that this phrase in the rules has to be interpreted purposively and contextually in the light of the context. This is, of course, the determination of whether the claimant is “deserving”, as Jackson LJ put it, of the protection (from the costs liability that would otherwise fall on him) extended, for reasons of social policy, by the QOCS rules. It appears to me that when one looks at the matter in that way, one sees that what the rules are doing is distinguishing between two levels of dishonesty: dishonesty in relation to the claim which is not fundamental so as to expose such a claimant to costs liability, and dishonesty which is fundamental, so as to give rise to costs liability.

  1. The corollary term to “fundamental” would be a word with some such meaning as “incidental” or “collateral”. Thus, a claimant should not be exposed to costs liability merely because he is shown to have been dishonest as to some collateral matter or perhaps as to some minor, self-contained head of damage. If, on the other hand, the dishonesty went to the root of either the whole of his claim or a substantial part of his claim, then it appears to me that it would be a fundamentally dishonest claim: a claim which depended as to a substantial or important part of itself upon dishonesty.”

The Judge felt that it was a useful exercise to look at the value of each head of loss in the context of the claim as a whole. The overall valuation (including CRU reimbursements) was approximately £80,000 before the Claimant received the surveillance evidence, including general damages of approximately £40,000 i.e. the case was approximately 50% general damages and 50% special damages. A substantial element of the special damages (£17,000) related to future care, which was substantially dependent on the Claimant’s evidence in relation to his pain and discomfort. The Judge considered what the likely award for general damages would have been in relation to the injury actually sustained, disregarding the Claimant’s assertions of significant ongoing pain. On a reasonably rough and ready basis, the Judge considered around half of the claim for general damages (i.e. approximately £20,000) would be attributable to serious ongoing pain and lack of function in the knee. On the basis that the future care claim, and a large proportion of general damages (i.e. approximately £37,000 in total) was dishonest, and that such dishonesty represented such a large part of the claim (a little over 46%) it was sufficient for the entire claim to be considered ‘fundamentally dishonest’.

HHJ Maloney Q.C. observed that, as a matter of law, it was not necessary that:

  1. “… the dishonesty went to the root either of liability as a whole, or damages in their entirety. It must be the case that dishonesty fundamental to a sufficiently major part of the claim would suffice to deprive the claimant of his costs protection, and open him to the court’s discretion as to how much of the costs he should pay…”

The Judge considered that the Claimant’s dishonesty was sufficient both in relation to its “size and importance” [at 58] in the context of his claim for damages as a whole

Leonel Zimi v London Central Bus Company Limited  (Central London
County Court) (8/1/2015) (HHJ Madge)

Zimi concerned a road traffic accident. The Claimant alleged that he was stationary in the right hand lane when the driver of the Defendant’s bus, moved from the left hand lane, encroaching into the Claimant’s lane and in doing so, collided with the rear passenger side of his stationary vehicle, causing the Claimant to sustain personal injury and consequential loss totalling £127. The Defendant denied that there had been a collision at all between the vehicles and relied on CCTV footage tending to suggest that was correct.

HHJ Madge was not satisfied there had been a collision at all but, even if there had been one, held that the Defendant’s bus had been stationary at the material time and thus, any collision was as a result of the Claimant’s own negligent driving.

The Judge’s attention was drawn to the decision in Gosling. He remarked when considering the meaning of “fundamental” [at 28], “I assume that the word, fundamental, means something going to the base, something going to the core of the claim, something of central importance and something which is crucial.”

HHJ Madge considered that this was not a claim which could have been brought by the Claimant with a mistaken belief. The Claimant could not have had an honest belief that there was a collision of the kind claimed. This was not a case of the Claimant being naïve or unworldly. The Judge was satisfied that the Claimant’s claim was ‘fundamentally dishonest’. The Judge then went on to consider the exercise of his discretion under r. 44.16 and whether it was just to exercise it so as to apply the exception to QOCS. He considered it was just to do so, having regard to all the circumstances.

Brian Creech v (1) Apple Security Group Limited; (2) Severn Valley
Railway (Holdings) Plc; (2) Irvin Leisure Entertainments Limited
(Telford C.C., 25/3/15) (DJ Rogers)

The Claimant claimed to have been injured when on patrol as a security guard at the Severn Valley Railway Station in Kidderminster. He asserted that he had fallen over a pile of abandoned mats which had been part of a temporary ice rink that had been erected and put on the station during the school half term some weeks before. He claimed the mats had been inappropriately left, placed between three benches in the middle of the station concourse. As a result of his fall he sustained a fracture of the humerus. At trial, the Claimant did not pursue the claim against his employer, the First Defendant. The Second Defendant was the entity responsible for the station and the Third Defendant had arranged for the provision of the temporary ice rink through sub-contractors. Following trial, the claim against the Third Defendant was all but abounded on the basis it was no longer sustainable.

Both the Second and Third Defendants denied that the accident could have happened as the Claimant alleged for the simple reason that the temporary ice rink was not removed until after the Claimant purported to have sustained his fall.

DJ Rogers preferred the Defendants’ evidence and concluded that the Claimant had not established that he fell over a pile of mats left on the station concourse. The Judge accepted that the rink had not been removed until after the time of the Claimant’s alleged fall. The Judge considered this was not a case where there was room for error – either the Claimant was correct in his recollection and assertion that the ice rink had been removed, and partially sorted at the side of the concourse leaving piles of matting on which he fell, or he was wrong. The Second Defendant invited the Court to make a finding that the claim was ‘fundamentally dishonest’.

DJ Rogers referred to the decision in Gosling. The Judge conclude that the case was ‘fundamentally dishonest’ – the accident could not have occurred, and did not occur, in anything like the circumstances suggested by the Claimant. Although the Judge expressly shied away from using the word ‘dishonesty’1 he concluded that the case advanced by the Claimant must have been, to his knowledge, incorrect. He must have known the accident did not occur as he alleged. The Judge held that the “… advancing of a case so plainly against the weight of the evidence, in the circumstances that I have outlined, can only be described as a fundamentally dishonest claim…”.

(1) Lorna Howlett; (2) Justin Howlett v (1) Penelope Davis; (2) Ageas
Insurance Limited 
[2017] EWCA Civ 1696

The meaning of the word ‘fundamental’ was finally authoritatively confirmed by the Court of Appeal in Howlett which is now the authority on the point.

Facts and First Instance Decision

The Claimants brought proceedings in relation to personal injury and other losses said to arise from a road traffic accident on the 27th March 2013. They claimed to be passengers in a car driven by the First Defendant when it hit a parked vehicle and that the collision was caused by the First Defendant’s negligence. The Second Defendant was the First Defendant’s insurer who robustly defended the claim, indicating in its Defence that it did not accept the accident occurred as alleged, or at all, and requiring the Claimants to prove: that they were involved in the accident; that it was caused by the First Defendant’s negligence; and that they suffered injury.

The Defence specifically pleaded that the collision was a low velocity impact, with injury being unforeseeable in any event. The Claimants’ credibility was expressly stated to be in issue and the Second Defendant asserted that the Claimants would be required to prove their case against the backdrop of a series of facts, or contentions. which were fully set out in the Defence. These included:

  • Matters which the Second Defendant suggested showed that the Claimants had been involved in previous staged/contrived accidents;

  • The failure by the Second Claimant to disclose an earlier accident to his expert;

  • The high number of previous road traffic accidents that the First Defendant had been involved in in the recent past;

  • The fact the First Defendant had not co-operated with her insurer; and

  • The unlikely/uncorroborated journey purpose.

The Second Defendant did not assert a positive case of fraud in its Defence.

At trial, the Second Defendant argued that neither of the Claimants were in the First Defendants car when the alleged accident occurred, that their claims were simply opportunistic and, further, if they were in the car, they had not suffered injury as alleged.

The trial judge, DDJ Taylor, dismissed the claim. He wholly rejected the Claimants case, essentially on the basis that none of the evidence was reliable. He considered that he had been given so many contrasting stories about the circumstances surrounding the accident; what led up to the accident; the accident itself; what happened post-accident; what evidence was given (or not given) to the medical experts; and misleading accounts set out in documents before the Court that there was, “…not one part of the stories explained to me by Mr and Mrs Howlett that gives me any confidence that the accident as described by them and Ms Davies on 27 March 2013 happened as described or at all”. The Judge found that the Claimants had not sustained any injury.

DDJ Taylor considered that it was open to him to find that the Claimants had been dishonest. He considered that the issue of the Claimants’ honesty had been fairly identified in the Defence, and their honesty had been appropriately challenged in cross-examination with Counsel putting the Second Defendant’s case to them and with the Claimants being given an opportunity to answer those allegations. The Judge found that it was “perfectly clear” the claim was fundamentally dishonesty.

The Claimants appealed the finding of fundamental dishonesty. That appeal was dismissed by HHJ Blair Q.C. A second appeal to the Court of Appeal followed.

Decision of the Court of Appeal

At paragraph 16, the Court of Appeal endorsed as being “common sense” the approach adopted by HHJ Moloney Q.C. in Gosling at paragraphs 44 and 45 of that judgment [as set out above, earlier in this chapter].

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1 The Judge’s decision to expressly avoid using the language of ‘dishonesty’ is not readily explicable.

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