Fundamental Dishonesty: An Update

I blogged on law and practice in relation to fundamental dishonesty in January 2021, and now update that blog with further dispatches from the front line.

The Incidence of Fundamental Dishonesty: An Unscientific Snapshot of 2022

In order to have a sense of how my own experience was mirrored by colleagues in Ropewalk Chambers, I conducted a recent survey asking colleagues for their own experiences regarding fundamental dishonesty at trial.

I sought hard data, along with impressions and observations. 

The results were remarkably consistent, as to data and impressions, although different patterns emerged across different sectors of practice, and as might be expected in a small sample, there were some outliers.

First, the hard data.

From 40 respondents there were 58 findings of fundamental dishonesty in trials conducted in 2022. Not many, it might be thought at first sight, and in absolute numbers it isn’t many. However at a little less than 1.5 such findings per practitioner (and individual numbers varied between none – and there were plenty with none – and 12), with approximately 1,500 members of PIBA, if consistent throughout the Personal Injury Bar, it scales up to about 2,175 such findings per year, or about nine such findings throughout the County Court per day, assuming 245-250 sitting days per year.

Again, in absolute numbers, not an avalanche of such findings, but far from negligible.

However two caveats to that estimate, which came from among the impressionistic comments. Firstly, there were accounts of a large number of discontinuances on the morning of, or during, trials at which fundamental dishonesty cast a very long shadow, some of which, it can be reasonably assumed, would have continued absent that shadow. And secondly, the number of findings of fundamental dishonesty appears to be on the rise year on year. 

As to the split between section 57 findings, and simple CPR 44.16 findings, it was about 28% to 72%.

Finally, I asked whether in any case a finding of fundamental dishonesty had been made but under section 57(2) the court had declined to dismiss the primary claim on the basis that the claimant would suffer substantial injustice if the claim was dismissed. Save for one instance (Woodger v Hallas, discussed below, and overturned on appeal) no judge declined to do so.

Indeed no colleague volunteered that any judge had ever done so. It would be interesting to hear if any reader has had a judge decline to dismiss the primary claim on this basis. On Ropewalk Chambers’ data alone, the incidence of this event would seem to be vanishingly small.

Second, the softer data.

I asked for a guesstimate as to the frequency in which fundamental dishonesty was raised at trial, either in a pleaded form or through cross-examination. Few respondents said lower than 10%. Most settled on a blended average of 20-25%, and the overall bias was towards the upper end of that range rather than the lower. In RTA work it was rarely lower than 50%. I stress these were impressions only, and may have been influenced by the fact that colleagues had been asked to focus on the number of fundamental dishonesty findings at trial and so had unconsciously overestimated the proportion or trials in which it was raised. But given the consistency of responses from those who represent both claimants and defendants in all manner of personal injury and disease work, I would be surprised if the figures above were not at least broadly recognised by practitioners and tribunals throughout the country.

And finally I asked for general comments and impressions. Again there was remarkable consistency. Used far more than ever/ever intended was returned by several colleagues. Deployed as a tactical weapon was returned by a majority of colleagues. Judicial approach varies wildly even on very similar cases came from a significant proportion. Most troublingly, a large number commented that section 57 remains poorly understood.

Section 57 Summary

With this final comment in mind, section 57 of the Criminal Justice and Courts Act 2015 itself needs a careful read, even if only as a reminder, before any practitioner either deploys or seeks to resist it.

In very simple terms:

1. It is a route to dismissal of an otherwise sound claim. Essentially, a claimant has snatched defeat from the jaws of victory through fundamental dishonesty.
2. He has “won” on both breach and causation of injury and loss. Section 57(1)(a): The court finds that the claimant is entitled to damages in respect of the claim.
3. Notwithstanding that “win”, he has been fundamentally dishonest. Section 57(1)(b): On an application by the defendant for the dismissal of the claim…the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim [a claim for damages in respect of personal injury, which includes a disease] or a related claim [a claim for damages in respect of personal injury which is made in connection with the same incident or series of incidents in connection with which the primary claim is made, and made by a person other than the person who made the primary claim].
4. Unless substantial injustice would follow, the entire claim for personal injury will be dismissed. As discussed above, it seems that substantial injustice is very hard to find. Section 57(2): The court must dismiss [the claim for damages in respect of personal injury] unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.
5. Lock, stock and barrel, in case it wasn’t clear. Nothing survives. Section 57(3): The duty [to dismiss the claim for damages in respect of personal injury] includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.
6. The Bullseye provision. “Take a look at what you would have won”, Jim Bowen would say with a consoling arm over the shoulder, and a cruelty necessary for the television audience. This seems to be the least understood, and often overlooked, provision. Its purpose is to determine a liquidated award for the purposes of the next sub-section, and presumably to have a sum of damages an appellate court could award if the finding of fundamental dishonesty was overturned. It is also the reason why dismissal of the claim prior to trial, when this assessment of damages is required, is (or should be) rare. Section 57(4): The court’s order dismissing the claim must record the amount of damages the court would have awarded to the claimant in respect of the primary claim but for the dismissal of the claim.
7. The reckoning. Defendant’s costs – damages as assessed = sum due and owing to the defendant. For example, the untainted personal injury claim is worth £50,000. If the defendant’s costs are £40,000, then no sum is owing under section 57. If they are £60,000, then £10,000 is owing from the claimant to the defendant. Section 57(5): When assessing costs in the proceedings, a court which dismisses a claim under this section must deduct the amount recorded in accordance with subsection (4) from the amount which it would otherwise order the claimant to pay in respect of costs incurred by the defendant.
8. The blow upon a bruise. “He’s already suffered enough” is the usual plea in mitigation. In those cases in which dismissal of the claim is followed by criminal proceedings or an application for committal for contempt, as happens from time to time (as discussed below), the fact of the loss of an otherwise good claim can be taken into account in sentencing. Section 57(7): If the court [in any subsequent criminal proceedings or proceedings for contempt of court against the claimant in respect of his fundamental dishonesty] finds the claimant guilty of an offence or of contempt of court, it must have regard to the dismissal of the primary claim under this section when sentencing the claimant or otherwise disposing of the proceedings.

A Whistlestop Update on the Law

The purpose of what follows is to highlight the various developments in the recent past, and direct practitioners to the relevant cases. A detailed discussion of those cases is not intended.

“Fundamental Dishonesty”

There has been little change in the approach to these key words themselves.

The following authorities continue to provide guidance on what fundamental dishonesty means, joined last year by Cojanu:

Dishonesty

Ivey v Genting Casino (UK) Ltd [2017] UKSC 67: the judge must be satisfied subjectively what the claimant’s state of mind was at the relevant time, and that objectively against that background whether an ordinary person would find the claimant’s conduct to be dishonest.

Fundamental

Howlett v Davies [2017] EWCA Civ 1696: the dishonesty goes to the root of either the whole of the claim or a substantial part of it, or a claim which depended to a substantial or important part of itself upon dishonesty.

London Organising Committee of the Olympic and Paralympic Games v Sinfield [2018] EWHC 51 (QB): a claimant should be found to be fundamentally dishonest if he has acted dishonestly and has thus substantially affected the presentation of his case in a way which potentially adversely affects the defendant in a significant way, and by “substantially affects” it is intended to convey the same idea as the expressions “going to the root” or “going to the heart” of the claim. 

Pegg v Webb [2020] EWHC 2095 (QB): if the dishonesty went to the root of either the whole of the claim or a substantial part of his claim then it would be a fundamentally dishonest claim.

Cojanu v Essex Partnership University NHS Trust [2022] EWHC 197 (QB): the claimant had been dishonest about the circumstances of his originating injury which gave rise to the need for clinical treatment which was delayed and thereby negligent, and this dishonesty was found at first instance to be fundamental. This was overturned on appeal, that dishonesty being irrelevant to his clinical negligence claim. A five-stage test at [47] was set out: the section 57 defence should be pleaded; the defendant bore the burden of proof to the civil standard; a finding of dishonesty is necessary; that dishonesty must relate to a matter fundamental to the claim; and it must have a substantial effect on the presentation of the claim.

Notice

The apparent requirement for pleading fundamental dishonesty was restated in Cojanu.

However historically defendants have relied on Howlett, in which the Court of Appeal actually dismissed an appeal against a finding of fundamental dishonesty (which appeal was founded on this not having been pleaded, and nor had “fraud” been raised) on the basis that the claimants had been accused of dishonesty during cross-examination and so “has had fair notice of a challenge to his or her honesty and an opportunity to deal with it”, and fair notice could include, subject to context, cross-examination which did not include the words “dishonest” or “lying”, although that would be a matter for the trial judge.

Between the two cases Mustard v Flower [2021] EWHC 846 (QB) presented a tricky point for defendants, since the defendant sought to amend a defence to plead fundamental dishonesty, and was refused permission to do so on the basis that there was no objective evidence of it, and suspicion alone, seemingly endorsing a position whereby “it would not be practical or proper to require a defendant to have made such an allegation prior to the trial in order to make an application under section 57”, rendering the restatement of the need to plead fundamental dishonesty in Cojanu even less consistent with earlier cases.

Jenkinson v Robertson [2022] EWHC 791 (QB) probably sums these cases up best: the claimant was a litigant in person, and fundamental dishonesty was raised for the very first time in closing submissions, and accepted by the judge. This was overturned on appeal. It was recognised that not pleading fundamental dishonesty was not a bar to its being sought or found, but the claimant had to be given adequate warning of this contention, and an opportunity to deal with it. References to exaggeration and even to section 57 in correspondence were not sufficient in the absence of these allegations being put in cross-examination.

As such, on balance the failure to plead section 57 is probably not a bar to a finding of fundamental dishonesty, although a subsequent failure to put the contention in cross examination would be a bar, but it is certainly best practice to do so if the evidence exists to justify it before trial, and (I would suggest) it probably increases the prospects of a finding if it is pleaded. 

Substantial Injustice (Section 57(2))

In Woodger v Hallas [2022] EWHC 1561 (QB) counsel for the claimant at first instance persuaded the judge that the claimant would suffer substantial injustice if his claim was dismissed after that judge found him to be fundamentally dishonest, and awarded him £49,415, albeit with limited costs, recognising that the injuries were serious and continuing, and the claimant had beaten the defendant’s Part 36 offer. Julian Knowles J (who decided Sinfield above) overturned this award. The two expressed reasons for finding substantial injustice, namely that part of the claim was genuine, and that others had provided past care, were insufficient.

The same outcome was reached in Muyepa v Ministry of Justice [2022] EWHC 2649 (KB). This was not an appeal, but a first-instance decision (with a 112-page judgment from Cotter J), in which the issue of section 57(2) was considered, and Sinfield discussed, with its own finding that “substantial injustice must mean more than the mere fact that the claimant will lose his damages for those heads of claim that are not tainted with injustice” cited with approval.

Credit Hire and Vehicle Damage

Defendants often contend that these heads of loss are not recoverable in cases of fundamental dishonesty arising from RTAs when there can be very substantial claims for credit hire. Claimants respond that these do not form part of the “primary claim” (namely “a claim for damages in respect of personal injury”).

The very close reasoning of Mr Recorder Mark Jones in Diaw v ERS Syndicate Management Ltd (unreported, County Court at Manchester, 25 February 2020) supports the claimants’ position, and draws particular attention at paragraph 94 to the distinction between section 57 (“in proceedings on a claim for damages in respect of personal injury”) and CPR 44.13 (“proceedings which include a claim for damages for personal injury”). 

The Distinction Between Section 57 and CPR 44.16

Following from the issue raised in passing in Diaw the subtle but potentially important difference in language between section 57 (the claimant is fundamentally dishonest) and CPR 44.16 (the claim is fundamentally dishonest) arose in Michael v IE & D Hurford Ltd [2021] EWHC 2318 (QB). A claim for eight physiotherapy sessions was advanced, with an unsigned invoice and detailed notes of treatment. The claimant denied knowledge of any but one such session, and the judge found that while the claim may have been dishonest, the claimant was not, and section 57 failed. Stacey J upheld the distinction between a dishonest claim and a dishonest claimant, and that an honest claimant bringing a dishonest claim might not be as rare as suggested in Sinfield, particularly where the benefit of a disputed element of a claim (such as physiotherapy, vehicle storage and credit hire costs, the Diaw point not arising in that case) were not paid to a claimant for their benefit, but to a service provider. The judge added that attention might be better focused on the solicitor rather than the claimant – a practical impossibility when the evidence only emerges at trial.

Contempt of Court

Applications are made by defendants in very few cases but, crucially, they are made.

In Calderdale & Huddersfield NHS Trust v Metcalf [2021] EWHC 611 (QB) there was an admitted delay in diagnosis and treatment of cauda equina syndrome. A claim was advanced for £5.7m. Surveillance demonstrated exaggeration, and before trial the claimant admitted fundamental dishonesty. An interim payment had to be returned, and it was agreed further to section 57(4) that the claim was, in reality, worth £350,000, so no little sum. Not only was the claimant not able to recover that sum, to which she would have been entitled absent her fundamental dishonesty, but she was sentenced to six months imprisonment for contempt of court. Indeed that was after section 57(7) mitigation (namely the surrender of £350,000), and her poor health, and her caring for a two-year-old child, absent which her sentence would have been closer to the maximum of two years given the scale of the exaggeration.

A further case shares a remarkable number of similarities: North Bristol NHS Trust v White [2022] EWHC 1313 (QB), namely cauda equina syndrome, a compromise on breach (at 50%), a claim for £4.1m, surveillance evidence, repayment of interim payments, an eight-year-old child, and six months imprisonment.

It was only even more widespread mitigation which led to a suspension of a sentence of six months in Hull University Teaching Hospitals NHS Trust v Colley [2022] EWHC 854 (QB), when a mother brought a £7m claim on behalf of her daughter contending she was wheelchair-bound in which clinical negligence had played a part, when both surveillance and social media showed her to be anything but wheelchair bound.

Conclusion

This is an area of law which seems to be developing very rapidly, and given the hard and soft data which introduced this blog, seems likely to continue to do so.