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The right time for fundamental dishonesty

Patel v Arriva Midlands Ltd & Anor
High Court (QB)
14 May 2019

The latest High Court decision on fundamental dishonesty is interesting for its consideration of the timing of the defendant's application, and the concept of "substantial injustice" in the context of a high value personal injury claim. Liz Harrison reviews the judgment in Patel v Arriva Midlands Ltd & Anor (2019).

Section 57 of the Criminal Justice and Courts Act 2015

S.57 of the Criminal Justice and Courts Act 2015 requires that the court must strike out the entirety of a personal injury claim, including any genuine part, where:

  1. the court finds that the claimant is entitled to damages in respect of the claim, but

  2. on an application by the defendant for dismissal of the claim under this 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 related claim.

…unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.

Substantive guidance was provided to courts considering s.57 fundamental dishonesty applications in LOCOG v Sinfield (2018) however in the case of Patel the court had to determine whether it could dismiss a claim under s.57 if damages had not yet been assessed.

Background

The claimant, a pedestrian, was injured when knocked over by a bus in a road traffic accident in January 2013. At a liability trial in October 2017 the court found for the claimant on primary liability but made a finding of 40% contributory negligence against him.

There was no doubt that the claimant had sustained injury in the accident. He had a cardiac arrest at the scene and was resuscitated. He was diagnosed with a subarachnoid haemorrhage. He was not discharged home until May 2013 after spending time in the intensive care unit, a general ward and then a rehabilitation unit.

When assessed by medical experts for the claimant (in January 2015) and the defendant (in August 2016) his presentation was of a severely disabled individual. He was found by both to be in bed, mute, almost entirely unresponsive and without movement in his hands, arms or legs. The claimant's son, who was his litigation friend, advised both experts that his father's presentation to them was typical. At best, the claimant's expert was told, "he would sit out, appearing to watch tv, or opening his eyes and looking around when family visit".

Neither the claimant's neuropsychiatrist, Dr Fleminger, nor the defendant's neurologist, Dr Schady, could find a neurological explanation for the claimant's presentation.

Dr Fleminger considered the possibility of conscious exaggeration, but rejected this in favour of a diagnosis of severe conversion disorder. He considered that the claimant lacked capacity. Dr Schady noted a number of aspects of the claimant's presentation, such as the absence of muscle wasting, which appeared inconsistent with his presentation, but was unable to make a distinction between feigned disability and a subconscious conversion disorder.

Surveillance evidence, which had been obtained in the time between the two experts' assessments, was subsequently disclosed. In stark contrast to the claimant's presentation the footage revealed that he was able to go out, walk, talk, and interact with others without any assistance from or dependence upon his family.

Having viewed the surveillance, Dr Schady considered that conversion disorder was not a tenable diagnosis. He considered the footage to be evidence that the claimant's alleged disability was feigned, and that his son's description of his disability was "frankly deceitful" and that "he lied to us". He considered that the claimant's pretence of disablement was also an attempt to deceive.

The claimant served no additional evidence from Dr Fleminger but, instead, served statements from family and friends, together with a letter from his treating neurologist seeking to explain that he actually had good days and bad days. The claimant's son admitted that he did not “communicate as effectively as he should have done” with the experts.

Submissions

The s.57 application came before Her Honour Judge Melissa Clarke for determination.

  1. The claimant sought to persuade the court that the issue could not be determined justly at this stage and that proceedings should be allowed to continue to quantification so that the court could consider:

    • all the witness evidence now available - as otherwise the court would have to be satisfied that the witnesses were lying without testing their evidence;

    • full and further expert evidence and a capacity assessment.

  2. The claimant argued that the court could not assess whether there would be substantial injustice to the claimant if his claim was dismissed without a full assessment of the value of the claim as, without this, it could not understand the extent of the claim being dismissed.

  3. It was additionally submitted that it would cause substantial injustice to the claimant as a protected part if his claim was dismissed because of the dishonest conduct of his litigation friend (his son).

Findings

HHJ Clarke considered the guidance set out in LOCOG as to the procedure to be followed when determining a s.57 application:

  • Firstly consider whether the claimant is entitled to damages in respect of the claim.

  • Then consider whether the defendant has proved on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim.

  • If so, then the entirety of the claim, including any element which is not dishonest, must be dismissed unless to do so would cause the claimant to suffer substantial injustice.

She also added a further point that, per s.57(4), the judge must also assess and record the amount of damages that would have been awarded for the honest part of the claim.

On the specific submissions she found that:

  • Dr Fleminger's assessment on capacity was based upon incorrect information and did not establish that the claimant lacked capacity. Absent any evidence that the claimant lacks capacity he must be presumed to have capacity in accordance with s.1(1) of the Mental Capacity Act 2005; she found that the claimant himself had been fundamentally dishonest, assisted by his son.

  • It was too late for the claimant to submit that the s.57 application had been made too early and should have waited until a quantum trial – this was a submission which should have been made at the previous directions hearing (and if it had been, there was no appeal).

  • The witnesses now brought forward by the claimant, suggesting that he had serious difficulties and that he had good days and bad days, were wholly at odds with the claimant's presentation to the experts and the evidence of his son. Even if their evidence of the claimant's abilities was true, it did not help him as it did not answer the inconsistencies between his presentation and the surveillance.

  • Further medical evidence and review of updated records would not assist. The issue was not whether the claimant was ill or continued to have some problems but whether he had been fundamentally dishonest in relation to the pleaded claim. Costs of full quantification to the parties and in terms of call upon the court's resources would be both unnecessary and disproportionate, in breach of the overriding objective.

The judge therefore:

  • Found that the claimant had been fundamentally dishonest, rejecting a submission that his presentation had been exaggerated rather than faked.

  • Rejected the submissions that dismissing the whole of the claim would cause substantial injustice

She dismissed the entirety of the claim and then went on to assess the value of the "honest" part of the claim in accordance with s.57(4) at £5,750. In so doing she roundly rejected and criticised the claimant's hopeful submission that she was unable to do this because the schedule was not particularised.

Comment

  • Presented with such overwhelming evidence as to disparity between the claimant's presentation to experts and his actual capabilities as shown on surveillance, it is unsurprising that the court was persuaded to make a finding of fundamental dishonesty in this claim.

  • What is clear from the judgment is that s.57 only requires there to have been a determination of an entitlement to damages (i.e. as a result of liability having been determined) for the court to then be able to consider a fundamental dishonesty application. The claimant's attempt to argue that further medical evidence was required before the issue could be determined (no doubt in the hope of finding an alternative explanation for the claimant's presentation), was rejected because, by that time, the question was not whether the claimant was unwell or had ongoing problems, but whether his presentation was inconsistent with his pleaded claim to the point that he can be said to be fundamentally dishonest. Further evidence would not have altered the approach to that question, and would simply add time and costs to the claim unnecessarily.

  • The claimant could not establish that dismissal of his claim in these circumstances would amount to "substantial injustice". The court in this claim was satisfied that the "dishonest part" of the claim represented the bulk of the pleaded value and was not prepared to consider the possibility that further evidence may provide an alternative diagnosis. The court could only consider the pleaded claim which was based upon a diagnosis of conversion disorder which was found to be untenable.

  • Of course, the greater the disparity between the genuine part of the claim (absent the dishonesty) and the pleaded claim, the more willing the court will be to dismiss the claim in its entirety without being troubled by the prospect of substantial injustice. But what of claims where the genuine element is assessed as meriting a substantial award? Assuming that the test that the dishonesty was "fundamental" (defined in LOCOG as dishonesty which "substantially affected the presentation of his case…in a way which adversely affected the defendant in a significant way") there is no reason why the loss of the genuine part of the claim should be seen as substantial injustice. As HHJ Clarke noted, the purpose of assessing the genuine part of the claim is not to consider whether there may be substantial injustice in depriving the claimant of it, but to calculate the appropriate costs award to be made in accordance with s.57(5), and to ensure that the court dealing with any subsequent contempt proceedings can take into account the lost damages and avoid double punishment for the same behaviour as required by s.57(7). As was held in LOCOG, substantial injustice had to be more than the fact that the claimant would lose damages he was genuinely entitled to as, otherwise, s.57(2) would effectively render s.57 useless. This must hold, even where the genuine part of the claim is substantial.

  • This does not mean that an immediate application under s.57 should be made in every case where surveillance evidence is served which is inconsistent with the claimant's presentation. There will be some cases – probably the majority – where the experts will continue to adopt a different view or a different shade of a view when presented with surveillance evidence or there may be legitimate evidence before the court which may "explain away" inconsistencies. It is possible that the decision in this claim may have been different had Dr Fleminger updated his evidence following review of the surveillance or had the claimant himself provided evidence as to the reasons for the discrepancies in presentation. In such cases the court may be unwilling or unable to dismiss the claim without hearing further evidence for fear of causing substantial injustice to the claimant. On the right case, however, it is clear that an early application for dismissal is possible and, having regard to the overriding objective, might even be desirable.

Contact

For further information please contact, Liz Harrison, Senior Associate on 0151 907 3419 or at liz.harrison@dwf.law

By Liz Harrison

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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