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Claimant avoids finding of fundamental dishonesty by the court attributing blame instead to his expert

Wright v Satellite Information Services Limited
High Court (QBD)
11 April 2018

In the third in a series of recent High Court decisions grappling with the concept of 'fundamental dishonesty' in relation to section 57 of the Criminal Justice and Courts Act 2015 ("Section 57"), DWF Consultant, Stratos Gatzouris  examines the recent judgment of Mrs Justice Yip in Wright v Satellite Information Services Limited (2018).

Summary

This latest case follows the other High Court decisions in London Organising Committee of the Olympic and Paralympic Games (in liquidation) ("LOCOG") v Haydn Sinfield (2018) (see our update on LOCOG) and Razumas v Ministry of Justice (2018) (see our update) where there were findings made of fundamental dishonesty in terms of section 57.

In both cases the court had considered the definition of fundamental dishonesty in that context by finding that the claimants had acted dishonestly, thereby substantially affecting the presentation of their respective cases (either in respect of liability or quantum) and that the fact that they had done so had potentially affected the defendant in a significant way satisfied the relevant test.

In Wright, the High Court on hearing an appeal was not prepared to interfere with a finding that the claimant had not been found to be dishonest in the first place and therefore the remaining considerations of fundamental dishonesty did not need to be considered.

Background

The claim arose as a result of an accident at work when the claimant, then aged 66 sustained a serious injury to his right lower limb. He was unable to return to work after the accident. The defendant admitted liability but quantum remained in issue.

The claimant claimed damages of £350,000 excluding PSLA. The main area of contention on appeal centred on a substantial future care claim for £73,000 (reduced from £109,000 which had originally been claimed) in respect of which the trial court only awarded £2,100. The defendant applied on this basis for a finding of fundamental dishonesty in terms of section 57.

The claimant had signed the statement of truth on the schedule of loss which put forward the future care claim which was also supported in his witness evidence. When he was cross-examined, he admitted that he had no ongoing need for care. The defendant's case was also supported by surveillance evidence which they considered showed exaggeration though this in fact was not considered by the judge on appeal.

The claimant had relied on the expert evidence of an occupational therapist who, taking into account that the claimant would need future surgery and was already needing assistance, arrived at a care plan which led to the calculation of such an extensive claim (10 hours per week currently and 6.5 hours in future). The claimant signed the schedule of loss (drafted by his solicitors) and stated in evidence that he signed this in much the same way one signs a set of accounts prepared by one's accountant.

The judge in the trial court did not agree with the expert opinion (which did "significantly overstate the care that the claimant requires") and found that the claimant should be awarded a substantially lesser sum. The judge did not though go on to find the claimant to have been dishonest, applying the objective test for dishonesty as laid down by the Supreme Court in Ivey v Genting Casinos (2017). The judge did however say that had he found that the claimant was fundamentally dishonest, then he would have struck out the entire claim on the basis that there would have been no substantial injustice to the claimant preventing that outcome.

Findings

On appeal, Mrs Justice Yip whilst being highly critical of the manner of drafting of the schedule of loss by the claimant's solicitors, stated that she had some sympathy for the claimant as regards his reliance on professional assistance in quantifying his claim and in his expert's evidence. The claimant had not laboured his point as far as his care claim was concerned, she thought.

She was of the view that the judge in the trial court had been entitled not to make a finding of dishonesty. The very fact that the future care claim had not been established did not make the claimant dishonest by merely presenting such a claim. This can be distinguished from the LOCOG case where the trial judge had initially found the claimant to be dishonest for manufacturing false invoices for a gardening claim.

The trial judge in this case had considered the issue of dishonesty throughout the trial and had not found the claimant to be dishonest – this was a finding of fact. He had weighed up all of the issues in doing so.

The appeal judge did say that there may be argument in future as to application of the principles identified in LOCOG but that this was not necessary here as there was no finding of dishonesty.

Comment

We can draw a number of conclusions from this judgment:

  • The monetary difference in value between the amount claimed and the amount awarded will of course be relevant but is not, on its own, a determining factor in a finding of dishonesty

  • Passive reliance on the opinions of professionals and experts was not dishonest in this case but as a result of the light shone by the case into this area should in future cause claimants to pause before placing uncritical reliance on the views of experts such as those in OT whose reports will be written at least in part based on evidence given to the expert by the claimant

  • Claimants may in future decide to avoid the use of experts prone to exaggerate quantum whose reports are vulnerable to being thought "fundamentally unreliable" as this expert's was, as otherwise they risk another judge seeing their reliance on that expert's assessment (especially where that assessment is built on the claimant's own account) as constituting dishonesty

  • We consider that the potential remains for obtaining a finding of fundamental dishonesty based on the claimant's presentation of a claim which accepts an expert's conclusion which the claimant has dishonestly led the expert to reach, but care will be needed to set out for the court how the responsibility for that dishonesty should be seen to rest with the claimant personally rather than with the expert

  • There is a distinction in considering whether there is fundamental dishonesty between the case of LOCOG where the claimant had deliberately provided fake invoices and this case where the claimant had exaggerated his care claim in reliance on a care report which could not be substantiated

  • Merely pointing to inconsistencies in the claimant's presentation of the claim is insufficient to obtain a finding of fundamental dishonesty

  • The judgment may encourage claimants and their lawyers to pay more attention to the drafting of schedules of loss as the claimant's schedule in this case was criticised by the court for going in for number-crunching only. What was needed was the detail behind the figures setting out how the case would be presented at trial

  • When considering a case of potential fundamental dishonesty, defendants need to first establish dishonesty on the part of the claimant before going on to deal with the criteria laid down in LOCOG and Razumas as part of determining whether that dishonesty was fundamental

  • The decision does however re-affirm that the mere threat of the loss of one's claim will not be considered to be a "substantial injustice" by way of exception to the striking out of the entire claim in terms of section 57 if fundamental dishonesty is established.

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 at stratos.gatzouris@dwf.law

By Stratos Gatzouris

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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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