Fundamental Dishonesty Appeal Rejected

Fundamental Dishonesty Appeal Rejected

CategoryNews Author Emma Corkill Date

Following Emma Corkill’s previous update on London Organising Committee of the Olympic and Paralympic Games v Haydn Sinfield [2018] EWHC 51 (QB) and Razumas v Ministry of Justice [2018] EWHC 215 (QB), the High Court has rejected a section 57 appeal in Wright v Satellite Information Services Limited [2018] EWHC 812 (QB).

The claim arose from an accident at work for which liability was admitted. The claimant sustained nasty injuries affecting his right lower leg, rendering him unable to return to work post-accident. However, the defendant obtained surveillance evidence which purported to show that the claimant was less disabled than his claim suggested.

The focus of the fundamental dishonesty allegation was the care claim. Over £73,000 was claimed yet only £2,100 was awarded at first instance. The judge’s findings were that the claimant had not demonstrated any real need for future care, the care claim was ‘overstated’ but the claimant was not dishonest.  The claimant’s own evidence described fairly low levels of care requirements, but the schedule of loss and the expert care report formed the basis for the high sums being claimed.

On appeal, the defendant argued that the claim had been presented on a false premise and the claimant had dishonestly maintained that stance despite knowing that it was incorrect. The contention was that the claim should have been dismissed pursuant to section 57 of the Criminal Justice and Courts Act 2015 as, having decided that the care claim was not established, the Judge should have found the claimant to be fundamentally dishonest as a matter of law.

The appeal came before Mrs Justice Yip on 11th April 2010, who dismissed the appeal. Her view was that the problems with the care claim stemmed from the poor quality care report and an inaccessibly drafted schedule of loss, which, although the claimant had signed, he had little hope of comprehending. In fact, the claimant readily accepted in his oral evidence that the expert’s care figures were unsustainable, suggesting he was a reasonable and honest witness.

Mrs Justice Yip highlighted that the trial judge had rejected the care claim because the evidence produced did not support the claim, not because he considered the claimant to be untruthful. A distinction was drawn with Sinfield, where the claimant admitted manufacturing false invoices to support a claim for gardening expenses. The claimant in Wright simply did not prove his pleaded case based on the evidence produced. The trial judge was entitled to find that, although at times the claimant gave a misleading impression by focusing on his symptoms when they were at their worst, he had not deliberately attempted to overstate his case. Mrs Justice Yip commented that not only had the trial judge acted within the ambit of his discretion when rejecting the s.57 application, she would have been “surprised if the judge had found that the rejection of the bulk of the future care claim in itself when set in context did support a finding of dishonesty, still less fundamental dishonesty”.

The Wright decision reminds us that the focus under s.57 is upon a finding that the claimant has been fundamentally dishonest, and illustrates that there remains a clear dividing line between that finding and a finding that an unsustainable claim has been promoted within the proceedings. The decision offers some re-assurance to claimants in a climate where defendants are quick to ask for s.57 findings due to a desire to remove QOCS protection. However, whether a fundamental dishonesty finding is open to the court remains heavily fact-sensitive and will depend on the assessment made by a judge of each individual claimant’s integrity.

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