Fundamental Dishonesty and Strike Out: Pinkus v Direct Line [2018] EWHC 1671 (QB)

The judgment of Pinkus v Direct Line [2018] EWHC 1671 (QB) was handed down last week. This concerned a Road Traffic Accident claim, where the claimant was alleged to have ‘exaggerated/fabricated’ its claim and the defendant sought strike out.

The claimant was involved in an accident on 21 August 2012 and liability was admitted. It was alleged by the claimant that he suffered from PTSD, as a result of the accident. His claim for past and future loss of earnings was valued at around £850,000.

The defendant, however, argued that the claimant sustained minor injuries and ‘short-lived travel anxiety/adjustment disorder’, which was resolved in early 2013. The defendant therefore submitted that the claimant had ‘exaggerated’ his claim and should be found fundamentally dishonest, under s.57 Criminal Justice and Courts Act 2015.

Her Honour Judge Coe QC gave judgment at the High Court.

She began by setting out s.57 Criminal Justice and Courts Act 2015.

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Commenting on the claimant’s conduct throughout the claim, she stated, at paragraph 196:

I find that the claimant has not been honest in many respects and has deliberately exaggerated his reported symptoms to both experts and treating doctors. I consider that he has fabricated many symptoms [including] severe memory loss. I consider that the consequence of this is intentional, its purpose being to inflate the claim by putting forward reasons for the claimant's inability to function in terms of his mental health, his employability and his activities of daily living. On the balance of probability, it is also the means by which the claimant has attempted to overcome or explain away the significant inconsistencies in the various accounts he has given over time. The fabrication is extreme resulting in an inability even on the part of the claimant's doctors to provide a reliable diagnosis.’

Accordingly, HHJ Coe QC found that the claimant had indeed exaggerated his claim but this did not necessarily mean that he was ‘dishonest’. The judge turned to review the authorities of ‘fundamental dishonesty’ to date, before reaching a determination on the present case:

  • LOGOC v Sinfield [2018] EWHC 51 (QB), as discussed in edition 216 (here).
  • Razumas v Ministry of Justice [2018] EWHC 215 (QB), as discussed in edition 220 (here).
  • Molodi v Cambridge Vibration Maintenance Service and Aviva Insurance [2018] EWHC 1288 QB, as discussed in edition 232 (here).
  • Richards v Morris [2018] EWHC 289 QB, as discussed in edition 232 (here).
  • Wright v Satellite Information [2018] EWHC 812 QB, as discussed in edition 227 (here).

Starting with the case of LOCOG, HHJ Coe QC cited Knowles J, who established the current test of ‘fundamental dishonesty’, for the purposes of s.57 and strike out.

‘… a claimant should be found to be fundamentally dishonest within the meaning of s 57(1)(b) if the defendant proves on a balance of probabilities that the claimant has acted dishonestly in relation to the primary claim and/or a related claim and that he has thus substantially affected the presentation of his case, either in respects of liability or quantum, in a way which potentially adversely affected the defendant in a significant way, judged in the context of the particular facts and circumstances of the litigation’.

HHJ Coe QC identified that the question before her was whether the ‘fabrication’ and ‘dishonesty’, exhibited by the claimant in Pinkus, ‘substantially affected’ the presentation of the claim in such a manner that it went to the ‘root’ or ‘heart’ of the claim, per Knowles J in LOCOG.

She went on to cite the case of Razumas, in which Cockerill J found that the claimant’s dishonest presentation of his case on liability and quantum ‘adversely affected’ the Ministry of Defence. ‘Substantial injustice’ would have been caused if the clearly ‘dishonest’ claim had been allowed to advance.

HHJ Coe QC then summarised the case of Molodi, wherein the claimant was held to be ‘fundamentally dishonest’ because of ‘inconsistencies and contradictions’ surrounding the evidence given. This contrasted with the case of Richards, where, even though there were inconsistencies and the judge branded the claimant’s delivery of evidence as ‘hopeless’, there was no ‘fundamental dishonesty’. Also, in the case of Wright, it was decided that even though the surveillance evidence proved that the claimant was less disabled than the extent alleged, this was deemed not to be ‘dishonest’.

HHJ Coe QC set out the quantum of damages sought in the pleaded schedule, as follows:

  • £231,930 for past loss of earnings;
  • £498,490 for future loss of earnings;
  • £46,706 for care; and
  • £55,000 for general damages.

She deemed that the claimant’s dishonesty went ‘close to the heart’ of the claim. After having analysed the case authorities on ‘fundamental dishonesty’, in view of the individual facts of Pinkus, HHJ Coe QC ruled, at paragraph 209:

…for the reasons given I consider that the claimant has been fundamentally dishonest. In this case the primary claim must be dismissed. I am not satisfied that the claimant would suffer any substantial injustice beyond the loss of the valid part of his claim. The obvious reason for such fabrication is financial gain. I can think of no other reason why this claimant would behave as he has. The pleaded schedule of loss is for a significant sum of money. Pursuant to 57(3) the entire claim is dismissed.

Full text judgment can be found here.