BC Legal Argues ‘Fundamental Dishonesty’ to Obtain £75,000 Costs Order: Marshall v Tom’s Cakes (Peterborough County Court [Sitting in Cambridge], 5 November 2019)

BC Legal and NFU Mutual have had recent success in securing an order requiring a Claimant to make an interim payment of costs of over £75,000, in a claim that was deemed to have been ‘fundamentally dishonest’, pursuant to CPR 44.16(1).

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The brief facts of Marshall v Tom’s Cakes were as follows.

The Claimant alleged that repetitive work processes caused her to suffer from an upper limb disorder, and also that she had been involved in a workplace slipping accident causing that condition to be exacerbated. She alleged this led to a Chronic Pain Syndrome, which in turn would preclude her from work for several years, and which necessitated considerable care and assistance. The claim posed a potential liability to insurers in excess of £500,000.

After a heavily contested trial, lasting 7 days, the Judge held that the Claimant had entirely fabricated the accident and found that the Defendant’s staff, several of whom had given supportive evidence, were a dedicated and happy team operating under entirely reasonable and safe processes. She accordingly held that the Defendant was not in Breach of Duty and found that Causation was also not established.

There was a significant difference between the Claimant’s presentation when she was examined by the Defendant’s Pain Consultant [who videoed the examination] as contrasted with covert surveillance taken on other occasions. The Judge accepted that she may have been suffering some pain due to non-work-related conditions, but concluded that her symptoms had been materially exaggerated.

At a further hearing following the initial Judgment, the Court concluded that the Claimant’s conduct, in both fabricating the accident and exaggerating her symptoms, amounted to a ‘fundamentally dishonest’ claim, warranting the disapplication of qualified one-way costs shifting (QOCS) protection.

As such, the Claimant was ordered to pay a £75,500 interim payment within 28 days.