Supplying ‘Wholly Unreliable’ Evidence is not ‘Fundamentally Dishonest’: Brint v Barking, Havering and Redbridge University Hospitals NHS Trust [2021] EWHC 290 (QB)

Judgment in the clinical negligence case of Brint v Barking, Havering and Redbridge University Hospitals NHS Trust [2021] EWHC 290 (QB) was handed down 3-weeks ago. From it, we take some interesting guidance on findings of ‘fundamental dishonesty’.

There had been an important and serious allegation advanced ‘on the eve of the trial’ that the claimant had been ‘fundamentally dishonest’, pursuant to s.57 of the Criminal Justice and Courts Act 2015, in respect of the ‘whole claim or at least a substantial part’ of it and that this was relevant to the success of any argument on causation.

Essentially, the basis for this allegation rested on ‘the claimant's “incredible or unreliable” version of the events at the time of the scan; her “failure to give a satisfactory account of her benefits claim” and / or her “failure to give a satisfactory account of her long-standing multiple prior health conditions in her witness statement and to the experts instructed in her case”’.

At the High Court, His Honour Judge Platts found that there was no breach of duty, on the part of the defendant.

It was therefore not necessary to consider ‘fundamental dishonesty’, with a view to dismissing the claim in its entirety, but it was if the defendant were to seek to recover its costs through the disapplication of qualified one-way costs shifting (QOCS) protection on those grounds, pursuant to CPR 44.16(1).

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Conducting this exercise, the judge rejected the defendant’s allegation that fundamental dishonesty arose.

Despite the ‘overall unreliability’ the claimant’s evidence, on the whole and judged by the standards of ‘ordinary decent people’, he was not persuaded that the claimant met the threshold of ‘dishonesty’, which Lord Hughes had established in the Supreme Court case of Ivey v Genting Casinos Limited [2017] UKSC 67:

‘When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual's knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest’ [para 74].

This determination was based on several noteworthy factors.

Firstly, the ‘extreme’ lateness of the defendant’s averment of ‘fundamental dishonesty’, without justification (to change from the position that the claimant had been honest). Secondly, the lack of indication that the claimant had been motivated by the prospect of money or financial reward. Thirdly, the defendant’s allegation of a ‘failure to give a satisfactory account’ was not synonymous with giving a ‘false account’ and therefore did not point to ‘fundamental dishonesty’. Fourthly, the claimant’s ‘psychological profile’ had to be balanced against the defendant’s accusations. Fifthly, the judge’s general ‘impression’ and ‘observation’ of the claimant over remote cross-examination was not one of a ‘dishonest person’.

All in all, the claimant’s evidence was deemed ‘wholly unreliable’ and was therefore not accepted. However, it did not amount to ‘dishonesty’, in the eyes of HHJ Platts, who was satisfied that ‘the claimant genuinely believed in the truth of the evidence that she gave’.

Full text judgment can be accessed here.