PI Brief Update

Fundamental Dishonesty: Cojanu v Essex Partnership University NHS Trust - Nicholas Dobbs, Temple Garden Chambers

16/02/22. Practitioners may find the appeal judgment of Cojanu v Essex Partnership University NHS Trust[1]of interest for its consideration of fundamental dishonesty. In Cojanu, a clinical negligence claim had been dismissed following a trial in the Norwich County Court as a result of a finding of fundamental dishonesty (under section 57 of the Criminal Justice and Courts Act 2015). Damages were assessed at £8,500. The Claimant appealed and the Defendant cross-appealed. The Claimant’s appeal was allowed and the decision on fundamental dishonesty overturned: although he may have been dishonest as to how the injuries were caused, that was incidental to the claim and did not amount to fundamental dishonesty in this case:[2]

61. I consider that the mechanism by which the Claimant received his cut was irrelevant to success in the clinical negligence claim. The Claimant did not need to prove how he was cut to win the civil action. He was injured before admission to prison. At that time he was not convicted of anything. It matters not whether he had suffered the injury opening a tin of beans, in gang warfare or whilst attempting to murder his wife. In the civil claim at first the Claimant said nothing of the cause of the cuts. Nor did he need to. Later, when the defendant pleaded it out, the Claimant lied about the cause. The Claimant was being dishonest in relation to his crime, during which he was injured and for which he has never admitted his guilt. But the cause of the cut fingers has no relevance to the clinical negligence claim. In my judgment the mechanism of how he cut his finger is incidental to the claim or collateral thereto.

62. The dishonesty in relation to how he suffered the cut only connected with the civil claim because it impinged on the Claimant’s credibility, and even then only in relation to his crime. The Claimant’s credibility on that issue was not relevant directly to his evidence in the civil claim and did not affect the liability part of the trial because liability was determined on expert evidence not the Claimant’s evidence.

63. This gives rise to the question: “can dishonesty affecting the Claimant’s credibility in relation to a crime he has committed before the civil claim (and his deportation at the end of his sentence), be fundamental to the evidence on quantum in the civil claim?”. Or using the Knowles J wording: “does the Claimant’s dishonesty about his crime which affects his credibility when giving evidence about the crime, go to the heart or the root of the civil claim?” In addition, I must ask: “does the Claimant’s credibility on that issue have a significant adverse effect on the way the Defendant should run its defence on liability or quantum?”

The dishonesty had no effect on liability or quantum:[3]

65. Firstly, all citizens are equally entitled to come before the courts in civil claims. Those with a long list of previous convictions and those without. Some will have better credibility than others, but S.57 is not a credibility filter barring those with previous convictions from bringing civil actions. S.57 focusses on the claim and the matters fundamental thereto and the Claimant conduct therein. 66. Secondly, the Defendant made great play of finding out itself about the Claimant’s conviction for attempted murder and then deciding to amend the defence as a result. But the medical report of Mr Bainbridge dated 1.3.2018 set out that he was in prison and the letter before action set out the same. That he was a convicted criminal was an open fact which was not to be avoided. I consider that there was no reason for the Claimant to mention his crime in the letter before action or the statement of claim. It was not a necessary part of the claim. He had nothing to prove in relation to the crime. Insurers and the NHS have to deal with every English and Welsh citizen who is injured. They cannot and do not turn away criminals or any other classes of person. The should and do not discriminate against patients on any ground. The same applies to the civil law. So I consider that this man, who has been convicted and found guilty of the horrific attempted murder of his wife, is not deprived of his right to sue simply because he was convicted or because he was at trial and still is dishonest about what happened during his crime.

67. I understand that in relation to proof of quantum of suffering by a criminal the Defendant would have become much more wary of the Claimant’s earning potential due to his criminal conviction but that is part of the factual matrix of any claim by a convicted criminal. Negligent defendants must take their victims as they find them. Not all victims are angels. On quantum the Defendant was no doubt more wary of any assertion the Claimant might make in relation to loss and expense because of the conviction. His lies relating thereto may have increased that wariness. Suspicion and wariness is what occurs in many cases when Claimants, for a wide range of reasons (some psychiatric, some emotional, some educational, some cultural, some criminal) show themselves to be unreliable in some aspect of their own evidence. But I do not perceive these challenges to be within the mischief target of S.57. The primary rationale for S.57 is to stamp out fraudulent and dishonest claims not to bar unrepentant or “in denial” criminals from the civil law.

68. On quantum the only change which the Claimant’s dishonesty as to his crime brought about was the amened pleading of the defence by the addition of S.57 and of illegality by the Defendant. The detail of the quantum in the counter schedule dealt with his low earnings and patchy work history and the fact he was a criminal but it did not substantially change the way the quantum defence was approached.

69. Finally, a yardstick I used to measure whether the dishonesty of the Claimant about his crime and deportation was fundamental to the civil claim was to ask what would be the wider effect of such a finding? Regrettably there are hundreds of drugs related gang stabbings in London and around England each year. Young men cut and kill each other over territory and drugs or other matters. If every one of those who were brought into hospital or prison and who denied criminality or starting the fight (and yet was convicted) is to be deprived of any civil claim when the hospital negligently cuts off the wrong leg or fails to treat the young man at all (because he is presumed to be a criminal), then the common duty of care owed by the NHS to all residents would be wholly undermined and likewise the will of Parliament when it imposed the equality principle for medical treatment of prisoners.

70. I rule that the Claimant’s dishonesty about his crime was not fundamental to either liability or quantum in the civil claim.