Kerry Underwood

FUNDAMENTAL DISHONESTY: NO NEED FOR DAMAGES HEARING

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These principles, and the whole issue of Qualified One-Way Costs Shifting, is dealt with in my book – Qualified One-Way Costs Shifting, Section 57 and Set-Off – Available from me here for £15.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

Patel v Arriva Midlands Ltd & Anor [2019] EWHC 1216 (QB) (14 May 2019)

the High Court dismissed a claimant’s personal injury claim on the ground of fundamental dishonesty, without the matter going to a quantum hearing, that is a hearing to decide the level of damages.

Here, the claimant was involved in a collision with a bus in January 2013 and then had a heart attack and his condition apparently deteriorated to the point where he was significantly disabled.

The claimant won the claim with a finding of 40% contributory negligence and the defendant’s insurers then applied to dismiss the claim before it went to a damages hearing, on the ground that it was fundamentally dishonest, as required by section 57 of the Criminal Justice and Courts Act 2015.

Experts had found the claimant in bed, mute and unresponsive and unable to move his hands, arms or legs, but with no apparent neurological reason, and they concluded that he was either feigning his disability, or had a subconscious conversion disorder.

However, the defendant secretly recorded the claimant over several days, showing him walking unaided, talking and engaging with what was going on.

One expert changed his view and said that the disability was feigned and that the claimant’s son, acting a Litigation Friend, had been deceitful, and the Judge accepted this evidence and said that even if the claimant’s condition changed from day to day, this should still have allowed him to correct the untrue information in the reports of the expert.

The claimant submitted that it was impossible for the court to find fundamental dishonesty without hearing all of the evidence, and that it should wait until after the damages hearing, a contention rejected by the judge:

“The claimant’s dishonesty has substantially affected the presentation of his case which potentially adversely affected the defendant in a significant way, and so that the claimant has been fundamentally dishonest.”

Comment

Spot on. However, we need to extend the fundamental dishonesty provisions to defendants in personal injury cases.

It is very simple – here is the draft of a new Section 57 A:

“In any personal injury claim where the court finds the defendant to have been fundamentally dishonest, the court shall increase by 100% the total damages and costs awarded to the claimant.”

Indeed, there is a compelling case to extend the fundamental dishonesty provisions to all civil and employment cases, for both parties.

Interestingly the same Judge – Her Honour Judge Melissa Clarke sitting as a judge of the High Court on 14 May 2019, held in

ATB Sales Ltd v Rich Energy Ltd & Anor [2019] EWHC 1207 (IPEC)

that it was not necessary to plead fraud or dishonesty, provided that the facts upon which an inference of dishonesty may be based are pleaded.

For all intents and purposes the courts now treat dishonesty, fundamental dishonesty and fraud as meaning the same thing, which must be right.

Written by kerryunderwood

May 30, 2019 at 8:12 am

Posted in Uncategorized

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