The Courts’ ‘Increasing Comfort’ with the ‘Concept of Fundamental Dishonesty’: Asghar v Galliford Try Plant & Another (2019) and O’Brien v Royal Mail Group Limited (2019)

Earlier this week, Litigation Futures published an article on the recent success of defendants in road-traffic accident (RTA) cases and intimated that there were signs that courts (especially at the appellate level) are becoming more amenable to the prospect of rejecting claims with secondary findings of ‘fundamental dishonesty’, under CPR 44.16(1).[i]

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Traditionally, the experience of personal injury practitioners, post-LASPO (effective since April 2013), has been that ‘only arduous investigation and specific pleadings’ put forward by defendant parties could compel judges to disapply qualified one-way cost shifting (QOCS) protection, by virtue of ‘fundamental dishonesty’, at trial.

However, the cases below provide ‘encouraging’ indications that courts are growing to be ‘increasingly comfortable with the concept of fundamental dishonesty’, and are prepared to reach outcomes ‘based on the judge’s assessment of the claimant alone’.

Asghar v Galliford Try Plant & Another (Sheffield County Court, October 2019)[ii]

In this case, while the defendant drew the court’s attention to the claimant’s prior involvement in ‘undisclosed earlier accidents’, no allegation of ‘fraud’ had been pleaded.

In spite of this, Deputy District Judge Birkby remarked that individual accounts of the alleged incident, provided by the defendant driver and the claimant, were ‘completely different’.

Having favoured the defendants’ recollection of events and having considered that it was not possible for the claimant to have been ‘mistaken’ when giving evidence, the court was obliged, not just to ‘prefer one account to another’, but also to find that the losing claimant had been ‘dishonest’.

O’Brien v Royal Mail Group Limited [2019] EWHC 2815 (QB)[iii]

In this second case, HHJ Beech established, at 1st instance, that the (no more than) 5 mph collision was not capable of forcing the claimant to attend hospital, visit his GP, or spend 6-weeks absent from work on sick leave, though the claim was rejected on the grounds of ‘unreliability’, as opposed to ‘dishonesty’.

The defendant appealed, on the basis that the Circuit Judge had erred on the ‘dishonesty’ point. This fell before Mr. Justice Martin Spencer, who, incidentally, gave the landmark ruling in London Organising Committee of the Olympic and Paralympic Games (LOCOG) v Sinfield [2018] EWHC 51 (QB), on s.57 (Criminal Justice and Courts Act 2015) ‘fundamental dishonesty’.

Having determined that the claimant was pursuing a ‘wholly bogus claim’, the appeal was allowed:

‘... in my judgment no judge in the position of HHJ Beech could have failed to find that this was a case of fundamental dishonesty. The fundamental dishonesty was, in my judgment, staring her in the face, and she failed to follow the logical conclusion of her own findings in relation to his matter’.

‘Fundamental Dishonesty’ Pleadings Moving Forwards

If the courts are, as some solicitors have interpreted, developing a more proactive approach to tackle fraudulent claims, some question whether extensive evidence of ‘fraud indicators’ is still needed to advance a strong ‘fundamental dishonesty’ argument.

On the other hand, if a claimant is embroiled in a ‘dishonest’ claim by no fault of their own, it would perhaps be pertinent to assume that the court would revert to a more reactive assessment of defendant-led submissions.

 

[i] Neil Rose, ‘Courts “more willing” to rule on fundamental dishonesty’ (21 January 2020 Litigation Futures) <https://www.litigationfutures.com/news/courts-more-willing-to-rule-on-fundamental-dishonesty> accessed 21 January 2020.

[ii] Jeff Turton, ‘Dishonesty is dishonesty’ (20 December 2019 Weightmans) <https://www.weightmans.com/insights/dishonesty-is-dishonesty-claimant-s-inaccurate-account-of-the-circumstances-of-a-collision-leads-to-a-finding-of-fundamental-dishonesty/> accessed 21 January 2020.

[iii] Jeff Turton, ‘The evolution of fundamental dishonesty’ (9 January 2020 Weightmans) <https://www.weightmans.com/insights/the-evolution-of-fundamental-dishonesty/> accessed 21 January 2020.