Large loss section 57 cases coming thick and fast

Emma Corkill writes by way of brief update on the fast moving PI fraud arena to report on two recent cases involving section 57 of the Criminal Justice and Courts Act 2015.

First, in January 2018 came the appeal decision of Mr Justice Knowles in London Organising Committee of the Olympic and Paralympic Games v Haydn Sinfield [2018] EWHC 51 (QB). This is an interesting case for those who remember the halcyon days of London 2012.  The claimant had, whilst volunteering at the Games, fractured his arm and subsequently brought a liability-admitted claim for injury and loss, including a claim for gardening expenses on the basis that the claimant had never paid for the services of a gardener before. The gardening claim accounted for approx. 42% of the special damages claim and just under 30% of the entire claim. The defendant did its homework and uncovered that the claimant had employed a gardener before the accident, his hours had not changed because of the accident and, to top it off, the claimant had forged invoices to support his dishonest claim.  The claimant filed an 'explanatory' witness statement before trial accepting that parts of his witness statement had been wrong as he had worded it 'badly' and admitted he had created the invoices himself, referring to his actions as 'self-billing'.

Somewhat charitably, the Judge at first instance found that the claimant was muddled, confused and careless, and that he was dishonest, but not fundamentally so.   Alternatively, that such dishonesty as there was related to a peripheral part of the claim and it would therefore be substantially unjust to dismiss the whole claim.

Sense prevailed on the appeal when Knowles J overturned the first instance decision to find that the claimant was fundamentally dishonest and it was wrong for the judge at first instance to find that he had merely been muddled and careless, particularly as the dishonesty was premeditated and maintained until uncovered by the defendants.

Mr Justice Knowles also disagreed with the trial Judge's alternative view that the claimant made out a substantial injustice which rebutted the presumption of dismissal. This missed the purpose of section 57 as "something more is required than the mere loss of damages to which the claimant is entitled to establish substantial injustice…It would render superfluous s.57(3) if the mere loss of genuine damages could constitute substantial injustice."  Further, the claim for gardening loss was not peripheral and should not have been so characterised.

The second case, which had the legal press buzzing again yesterday, is Razumas v Ministry of Justice [2018] EWHC 215 (QB). This case concerned a prisoner seeking damages for clinical negligence during different periods of incarceration for which he said the Ministry of Justice was responsible.  The claim was argued, unsuccessfully, on a number of fronts. But in interesting obiter comments on section 57, Mrs Justice Cockerill found that Mr Razumas had given false evidence which went to a single allegation of negligence in the case; however, had that one allegation been proved it would have established liability against the Defendant. Adopting the test set out in Sinfield, Cockerill J found that as the dishonesty had substantially affected the presentation of his case, the dishonesty was fundamental.

As in Sinfield, the Court gave short shrift to the Claimant's argument that he would face a substantial injustice if he were to be deprived of damages for the genuine part of his claim. Mrs Justice Cockerill commented that "it cannot in my judgment be right to say that substantial injustice would result in disallowing the claim where a claimant has advanced dishonestly a claim which if established would result in full compensation. That would be to cut across what the section is trying to achieve". 

We anticipate that these two cases are the tip of the iceberg as large loss cases issued after 13 April 2015 (the commencement date for section 57) are coming to trial with increasing frequency.  It is certainly an interesting time to practise whilst the Court and practitioners get to grips with the operation of this significant provision.

Emma Corkill

Emma recently secured the dismissal of an entire claim using Section 57 of the Criminal Justice and Courts Act 2015 and she and other members of the 39 Essex Chambers personal injury fraud team are available to act and advise on similar applications in the future.  If Emma or any of the team can help, please contact their Practice Managers, Ben Sundborg or Harry Airth, on 0207 832 1111.