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Fundamental Dishonesty: The Importance of Adequate Warning To A Claimant - Nicholas Dobbs, Temple Garden Chambers

20/04/22. In Jenkinson v Robertson,[1] the Claimant appealed against a finding of fundamentally dishonest that had resulted in his claim being dismissed in its entirety pursuant to section 57(2) of the Criminal Justice and Courts Act 2015. The Claimant had sustained multiple injuries in a road traffic accident and at trial the principal issue between the parties was whether there was any causative link between the accident, the mid-back injury he claimed to have suffered and the development of a Schmorl’s node or any persisting thoracic pain symptoms.

The Claimant relied on three grounds of appeal: (1) he was not given sufficient notice of, or opportunity to respond to, allegations of fundamental dishonesty; (2) the Judge wrongly reversed the burden of proof, effectively requiring the Claimant to prove that he had not been fundamentally dishonest; and (3) the Judge was led into error, or was simply wrong, in relation to each of the factors on which he based his decision that the Claimant was fundamentally dishonest. The appeal was allowed on the first and third grounds.

The findings on appeal in relation to the first ground of appeal are perhaps of particular interest. The appeal judgment reviewed various well-known authorities on fundamental dishonesty (at [19]-[24]) before summarising the key principles (at [25]), including that while an allegation of fundamental dishonesty does not necessarily have to be pleaded, the key question is whether the claimant has been given adequate warning of the matters being relied upon in support of the allegation and a proper opportunity to address them.

The section 57 defence can be raised at a late stage, even as late as in closing submissions. However, where the claimant is a litigant in person, the Court will ordinarily seek to ensure that the allegation is clearly understood (usually by requiring it to be set out in writing) and that adequate time is afforded to the litigant in person to consider the defence. It was held (at [32]):

32. It is in the interests of basic fairness that a Claimant should be given adequate warning of, and a proper opportunity to deal with, the possibility of a finding of fundamental dishonesty. The consequences of such a finding are severe, and rightly so, but the safeguards against an unjust finding are the giving of adequate notice of the allegations and a proper opportunity to respond. What amounts to such notice or opportunity in a given case will depend on the circumstances. Ordinarily, the allegations will be either pleaded or set out in writing, but there may be cases where that is not necessary. The fact that the Claimant is a litigant in person is a factor to be taken into account in assessing adequacy of notice and the opportunity to respond but that fact does not of itself demand that in all cases involving litigants in person, there has to be written prior notice of the allegations.

It was notable in the present case that the Claimant had...

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