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Claimant scythed down by Section 57

The decision of the High Court in London Organising Committee of the Olympic and Paralympic Games (In Liquidation) ("LOCOG") v Haydn Sinfield ("Sinfield") on 22 January 2018, has opened up further debate on the concept and definition of 'fundamental dishonesty' in relation to applications under section 57 of the Criminal Justice and Courts Act 2015 ("Section 57") and in respect of the Qualified One-Way Costs Shifting (QOCS) regime.

DWF Consultant, Stratos Gatzouris, takes a look at the judgment, which saw the claimant lose the whole of his claim after he had produced false receipts in respect of a claim for gardening assistance in the sum of £14,500, which represented just under 30% of the total value of his claim.

Summary

Readers may recall that in the recent case of Howlett & Anor v Ageas (2017) the Court of Appeal confirmed the approach taken by HHJ Moloney QC in defining fundamental dishonesty in the county court case of Gosling v Screwfix (2014) as dishonesty that went to the root of the whole or substantial part of a claimant's case rather than being in respect of a "minor, self-contained head of damage" as being the correct approach.

That case considered the operation of raising the question of fundamental dishonesty as an exception to the Qualified One-Way Costs Shifting (QOCS) regime under CPR r.44.16 so that if there were to be such a finding, the claimant would lose QOCS costs protection and be ordered to pay the defendant's costs. Read our update on Howlett

The decision in Sinfield by Mr Justice Knowles, following an appeal by the defendant, illustrates the way in which the courts might approach and apply fundamental dishonesty. The judgment says that a defendant will need to prove on a balance of probabilities that:

  • the claimant has acted dishonestly in relation to a primary or related claim
  • by doing so he has substantially affected the presentation of his case, either in respect of liability or quantum;
  • in a way which potentially adversely affects the defendant in a significant way, judged in the context of the particular facts of the case
  • the claimant will be found to be fundamentally dishonest.

In Sinfield, the financial value of the claim to which the dishonesty applied was a little under 30%. The financial value of the claim to which the dishonesty applied in Gosling was around 50%. Whilst the defendant has been able in this case to secure a finding of fundamental dishonesty at a slightly lower financial threshold in percentage terms, the head of loss to which the dishonesty related was still said by the Judge to be a "very substantial" part of the claim.

In the course of presenting the fraudulent claim for gardening assistance, the claimant had created false invoices from a gardener and when those invoices were challenged he reduced that head of loss from over £14,500 to just over £1,500.

Section 57 Criminal Justice and Courts Act 2015

Section 57 of the Criminal Justice and Courts Act 2015 has been with us now for approaching three years and affects claims that were issued after 13 April 2015. Up until now, there has been no authority to guide judges and practitioners as to how it should be applied.

Section 57 was introduced as a result of what was the unfairness perceived to have been created by the Supreme Court decision in Summers v Fairclough Homes (2012), where the Court had refused to strike out Mr Summers' claim, even though he was awarded just over 10% of what had been a claim of over £800,000.

Of course, 'fundamental dishonesty' as a concept has been with us since the implementation of the LASPO reforms in April 2013, in respect one of the exceptions to the QOCS regime, as under CPR r.44.16: a claimant loses the protection afforded to them under QOCS if "the claim is found on the balance of probabilities to be fundamentally dishonest".

It had been expected that the courts would go on to define fundamental dishonesty in the same way in both QOCS and Section 57, as during the debates on the Criminal Justice and Courts Act Parliament had in mind the fact that fundamental dishonesty as a concept was already is use in QOCS when Section 57 was on its way to become law.

Section 57 states this and applies to injury claims issues on or after 13 April 2015:

"1.This section applies where, in proceedings on a claim for damages in respect of personal injury (the primary claim) –

(a) The Court finds that the Claimant is entitled to damages in respect of the claim, but;

(b) on an application by the Defendant for the dismissal of the claim under the section, the Court is satisfied on the balance of probabilities that the Claimant has been fundamentally dishonest in relation to the primary claim or a later claim.

2.The Court must dismiss the primary claim, unless it is satisfied that the Claimant would suffer substantial injustice if the claim were dismissed."

It is worth noting (as Mr Justice Knowles does in his judgment) that in the context of QOCS, it is the claim that has to be found to be fundamentally dishonest, whereas in the context of Section 57, it is the claimant that has to be found to be fundamentally dishonest.

'Substantial injustice' is not defined and whilst there have been a number of reported cases where Section 57 has been applied in respect of fundamental dishonesty, the courts have until now not had cause to consider what constituted substantial injustice.

The section describes such a dismissal as a "duty" on the court's part which includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.

If the court makes a finding of fundamental dishonesty, it must record the amount of damages it would have awarded the claimant, but for the dismissal of the claim and when assessing costs, the court will then deduct the value of the "genuine damages" that it would have awarded from the defendant's assessed costs.

In any subsequent criminal proceedings that may flow from this finding, if the court finds the claimant guilty of a criminal offence, that court must have regard to the dismissal of the claimant's claim in those civil proceedings.

Background

Mr Sinfield was injured whilst volunteering at the London Olympics when he fell on his arm fracturing his wrist. He brought proceedings for personal injury and liability was admitted. He served a Preliminary Schedule of Damages verified with a statement of truth, where amongst other items of loss he claimed for past and future gardening expenses. Damages for pain, suffering and loss of amenity were agreed at £16,000.

He claimed that he had a large 2 acre garden which, pre-accident,  he had looked after with his wife, but post accident he was unable to help his wife and had to employ a gardener for 2-4 hours per week. The total claim for gardening expenses came to just under £14,000 out of a total value of special damages of just over £33,000. He increased this figure to over £14,700 in a later schedule.

The head of loss was supported by evidence in his witness statement and he disclosed a series of invoices, purportedly from the gardener. It transpired that the invoices were false and the gardener gave evidence in court to that effect. Furthermore, the gardener stated that he had been providing the same gardening services both before and after the accident.

Having carried out investigations into the gardening claim which including speaking with the gardener, the defendant filed an amended defence pleading fundamental dishonesty which resulted in the claimant amending his witness statement and schedule of loss.

He sought to allege that he had worded his statement badly and thought he was obliged to provide invoices to substantiate what he perceived to be a genuine claim - stating that he now had no choice but to engage a gardener whereas he had not necessarily needed to do so before the accident; he had therefore created the invoices by way of "self-billing". The claimant then provided a further version of the schedule of loss in which he reduced his claim for gardening expenses to £1,657.96.

Trial Court Decision

At first instance, before Recorder Widdup, the claimant was awarded damages and the Recorder rejected the defendant's application for a finding of fundamental dishonesty in terms of Section 57. The Judge concluded that Sinfield was 'muddled, confused and careless' about his claim for gardening assistance, but there was insufficient evidence to infer that he had been dishonest about the claim itself.

The Recorder did find that the creation of false invoices was dishonest by ordinary standards and that the dishonesty was "fundamental to the gardening claim" but decided that it did not contaminate the entire claim and was "peripheral" to it. Sinfield had made a careless error in the initial presentation of his case which he later compounded by attempting to conceal it. However, it was not 'fundamental'. If a higher court were to find that it was indeed fundamental, the Judge held that the claimant in this case would suffer a substantial injustice in losing an otherwise genuine claim.

The Appeal

The defendant appealed to the High Court and challenged the decision on three grounds:

  1. The Judge's finding (of fact) that Sinfield had simply been muddled, confused and careless in making his assertions in his preliminary schedule of damages was wrong.
  2. The Judge had been wrong to conclude that the dishonesty he did find, did not constitute fundamental dishonesty
  3. The Judge was wrong to conclude that even if there had been fundamental dishonesty, there was substantial injustice

Mr Justice Knowles in hearing the appeal considered Howlett, which had dealt with the concept of dishonesty which is so fundamental so as to give rise to a costs liability on the part of a claimant by way of exception to QOCS in terms of CPR r.44.16. As mentioned earlier, he further highlighted the difference in emphasis between this rule which requires the claim to be fundamentally dishonest and the wording in Section 57 which requires the claimantto be dishonest. Although he accepted that it would be rare for a claim to be fundamentally dishonest, without the claimant also being fundamentally dishonest.

In respect of the first ground, he determined that he was entitled to overturn the lower court judge's findings of fact on the basis that these were not conclusions of fact but rather an evaluation or inferences drawn from the facts (for example, that Sinfield had simply been muddled or confused). The Judge found that Sinfield had deliberately misled those dealing with his claim and the court by leaving the impression that he had had no gardening assistance prior the accident, the effects of which only then necessitated the employment of a gardener, which was a dishonest misrepresentation.

Mr Justice Knowles concluded that the Recorder "…was plainly wrong…" not to have reached the conclusion that the claimant had made "dishonest misstatements".

In a critical part of his judgment when considering ground 2 of the appeal, Mr Justice Knowles found Sinfield to have been fundamentally dishonest (the gardening expenses claim not being peripheral and constituting a substantial portion of the special damages claim).

He held that a claimant should be found to be fundamentally dishonest in terms of Section 57 if the defendant proves on a balance of probabilities that:

  • the claimant has acted dishonestly in relation to the primary or related claim; and that
  • he has thus substantially affected the presentation of his case either in respects of liability or quantum,
  • in a way which potentially, adversely affected the defendant in a significant way judged on the facts and circumstances of the litigation.

He likened the formulation of the phrase "substantially affects" to the concept expressed in Parliament by Lord Faulks QC, then Minister of State for Justice, when this section was debated in the Lords ("if we,,,ask a judge to decide whether someone has been dishonest, it is well within the capacity of any judge. They will know exactly what the clause is aimed at - not the minor inaccuracy about bus fares or the like, but something that goes to the heart.". Even on the findings that the Recorder made, he should have found the claimant to have been fundamentally dishonest.

On the third ground, relating to the concept of substantial injustice, the appeal Judge disagreed with the lower court's judgment to the effect that the claimant would suffer substantial injustice by his claim being dismissed, as he would not be awarded his genuine damages in an otherwise genuine claim. Mr Justice Knowles held that such an approach defeats the purpose of Section 57. 

The Recorder's approach had been wrong in considering whether the greater part of the claim was honest which in itself would cause substantial injustice. Something more than a mere loss of damages was required. Parliament had provided the default position which was that a fundamentally dishonest claimant should lose his damages in their entirety. The gardening claim was a "very substantial part" of the claim, Mr Justice Knowles commented.

The appeal therefore succeeded on all three grounds.

Comment

This case (whilst only at High Court level) is binding on county courts and gives worthwhile guidance on some of the remaining issues in relation to the important subject of fundamental dishonesty. The decision is of course set against the background of Section 57 rather than QOCS as both Howlett and Gosling had been, and there are clearly certain differences between those two contexts, such as whether the claim (QOCS) or the claimant (Section 57) needs to be fundamentally dishonest, and additionally the need in the Section 57 scenario but not with QOCS to go on and consider the question of substantial injustice.

The overlap between the use of the same phrase in the two situations is clear, but what is unclear is the extent to which judicial authorities given in the context of Section 57 will apply in relation to QOCS, and vice versa. The use of the same language would point to it being appropriate to be able to use any authority in either situation, but the effects of a finding are of course different: dismissal of the claim unless there is substantial injustice in  the case of Section 57; loss of costs protection in the case of QOCS. We cannot therefore exclude the possibility of certain differences of approach between the two situations being seen in future cases.

The decision will be welcomed by insurers and fraud practitioners but it also places all those dealing with personal injury claims on notice that:

  • A single head of claim that has been dishonestly made, may be sufficient for a finding of fundamental dishonesty in terms of Section 57 and indeed probably QOCS if it substantially affected the presentation of the case and had the potential to adversely affect the defendant. Schedules of Loss which of course require a statement of truth will now be expected to be scrutinised and investigated even more thoroughly in case any head of loss is being falsely presented
  • Following on from this decision, defendants may want to revisit Part 36 offers that have been made and which may now be considered generous in light of Mr Justice Knowles' approach to fundamental dishonesty
  • Substantial injustice cannot as in this case amount to a mere loss of other genuine damages. While the expression is still effectively undefined in that we are still without an example of what does constitute substantial injustice, it must be something more than loss of the claim itself

As in all cases of this kind, the facts and circumstances surrounding the dishonesty in question will be crucial as was evident in this case. It will not just be a question of mathematics, but it is worth noting that in this case, the claimant's dishonesty related to approximately one third of the total value of his claim, less than the 50% seen in Gosling. We expect that the point will remain valid however that the larger the level of the overall value of the claim as will be seen with more the serious injuries, the more significant the dishonesty will need to be in terms of quantum of the affected part of the claim for it to be fundamental.

It should also be emphasised that whilst this is at present the leading case on Section 57 and that it will be influential in relation to fundamental dishonesty as a result as we saw with Judge Moloney's judgment in Gosling, it is possible that it may be appealed and/or that the Court of Appeal in future may come to a different conclusion on the issues which it did not address in Howlett.

Contact

For further information about this article or about the operation of fundamental dishonesty in QOCS or Section 57, please contact Stratos Gatzouris on 0161 604 1841, or by email stratos.gatzouris@dwf.law

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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