Following a road traffic accident the claimant brought a claim for personal injury, the defendants to which were the other driver and his insurer with the latter conducting the defence of the claim. The pleaded claim included sums for damage to the claimant’s vehicle, plus consequent recovery, storage and car hire charges, and a claim for pain, suffering and loss of amenity which included injury to the neck and left shoulder. In a witness statement and oral evidence at trial the claimant also stated that he had suffered a head injury with swelling which had lasted three to four days after the collision. The judge found that the personal injury claim had not been proved on the balance of probabilities but he would have allowed the sums in respect of the car. However, with regard to the head injury, he found that the claimant had been fundamentally dishonest in relation to the primary claim within the meaning of section 57 of the Criminal Justice and Courts Act 2015, concluding that it was axiomatic that the dishonesty was fundamental, and he dismissed the claim accordingly. In response to the claimant’s request for further reasons on that issue, the judge indicated that even if the compensation for a genuine head injury of the kind alleged would only have been nominal, the dishonesty still went to the root of the claim because of the assertion of head injury in circumstances where no head injury had been sustained. The claimant appealed on the ground that where, inter alia, the head injury had not formed part of his pleaded case and his counsel had not invited the judge to include it when assessing the quantum of damages, there was no basis for a finding that dishonesty had gone to the root of the case or that it had substantially affected the presentation of his case on liability or quantum, or both, in way which potentially adversely affected the defendants in a significant way.
On the claimant’s appeal—
Held, appeal allowed. (1) For the purposes of section 57 of the Courts and Legal Services Act 2015, the authorities established the following propositions which applied when considering what amounted to “fundamental” dishonesty: (i) there was a danger of elaboration or metaphor and, in turn, of creating tests which were different from the words of the statute such that the latter would not be applied; (ii) the statutory word “fundamental” was to be given its plain meaning. The expressions “going to the root” or “going to the heart” of the claim were often sufficient to capture the meaning of the statutory word. Provided that it was understood in the same way, it might assist in some cases in respect of applying the word “fundamental” to consider whether the dishonesty substantially affected the presentation of the case, either in respect of liability or quantum, in a way which potentially adversely affected the defendant in a significant way, judged in the context of the particular facts and circumstances of the litigation; (iii) the judgment as to whether the relevant dishonesty was sufficiently fundamental ought to be a straightforward jury question of fact and degree, in each case, as to whether the dishonesty went to the heart of the claim, which had to involve considering the dishonesty relied upon and the nature of the claim, both on liability and quantum, which was actually being advanced; (iv) it would often be appropriate in that holistic exercise to consider the extent to which the alleged dishonesty resulted in an inflated claim, ie the extent to which the dishonesty, if not exposed, would potentially have resulted in a higher quantum of recovery in respect of the claims made, which involved consideration of the various losses claimed by a claimant and assessing the potential impact of the alleged dishonesty on the award for those losses (para 41).
(2) Applying those principles to the present case, the judgment was unsatisfactory in the following respects as regards the finding of fundamental dishonesty: (i) the finding that it was axiomatic that the dishonesty was fundamental had not been reasoned; (ii) although the judge had rightly acceded to the request for reasons, he had not provided any or any adequate reason for the finding and, in particular, the references to the dishonesty going to the root of the claim had been no more than an expression that the dishonesty was fundamental; (iii) there had been no explanation how the dishonesty could have been fundamental in circumstances where the head injury had not formed a part of the pleaded case for pain, suffering and loss of amenity, and where there had not been a head injury claim in any of the following: (a) in the pleadings, (b) in the claim notification form or (c) in the medical report, all of which had referred to the neck and shoulder injuries, but not to the head injury; and (d) at trial, where there had been no attempt to claim for a head injury; and (iv) the judgment had erroneously referred to a claim in relation to the head injury. In the circumstances, the fact that the claimant had given evidence about a three- to four-day head injury, which was a minor and very short-lived injury which had not formed part of a claim for pain, suffering and loss of amenity, the references to the head injury in the witness statement and in the oral evidence did not go to the root of the claim and the presentation of the case had not been affected substantially, either in respect of liability or quantum or both, in a way which potentially had adversely affected the defendants in a significant way (paras 42, 46, 48, 51).
Per curiam. The foregoing is not intended to make light of the seriousness of making up a part of the evidence. Consideration can be given to visiting the same with consequences in the provisions relating to costs under the CPR to the extent that the court may have regard to the conduct of the parties, which is broadly defined: see CPR r 44.2(4)–(5). That is a different matter from whether the defendant has made out that the claimant “has been fundamentally dishonest in relation to the primary claim or a related claim” for the purpose of section 57 of the 2015 Act (para 50).
Jeffrey Deegan (instructed by Concept Law Solicitors Ltd, Nelson) for the claimant.
Brian McCluggage (instructed by Keoghs LLP) for the second defendant.
The first defendant did not appear and was not represented.