'Fundamental Dishonesty' Under Section 57 of the Criminal Justice and Courts Act 2015: Smith v Ashwell Maintenance Limited (Leicester County Court, 2019)

In January, judgment was handed down on a personal injury trial, where a defendant contended that a claimant had been ‘fundamentally dishonest’, within the meaning of s.57 of the Criminal Justice and Courts Act 2015, and should therefore have its primary claim dismissed.

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Facts of the Case

The claimant was injured in the course of his employment as a gas engineer working on gas installations at a site occupied by De Montfort University, in Leicester. On 14 July 2013, he slipped and fell approximately 4 ft. into a hole, striking his foot on a pipe at the base of the opening and injuring his ankle.

Claimant and Defendant Allegations

It was alleged that the claimant had continued to suffer ‘debilitating pain’, was ‘unlikely to find gainful employment’ and had a ‘need for ongoing care from his family’. Whereas, the defendant submitted that the claimant’s injury was ‘time limited’ and he had in fact ‘recovered within months’ of the incident.

Fundamentally, the question for Her Honour Judge Hampton, over the space of the 7-day trial, was whether the claimant’s claim had been ‘so exaggerated as to amount to fundamental dishonesty’?

The defendant adduced ‘covert surveillance evidence’ to bolster its argument, which showed the claimant ‘driving, apparently walking without any or any substantial difficulty and engaging in activities that ... are work related’. Further, it made reference to the claimant’s appearance on a television program, in which he could be seen ‘undertaking do-it-yourself and decorating activities, negotiating stairs apparently without difficulty’.

The claimant’s physical aptitude at the time of TV filming contrasted with his depiction of disablement in an appointment with Mr Allen, an orthopaedic surgeon. In his medical expert report, he described that the claimant had expressed an inability ‘to squat or kneel [or run] and that he was struggling with stairs’. Mr Allen also recorded that the claimant ‘walked with a limp’.

The trial judge deliberated that there were ‘some very obvious contradictions’, which had the effect of downgrading the reliability of the claimant’s evidence. However, objective medical testing, which could not be ‘feigned by a patient’, revealed ankle instability and marked soft tissue swelling, indicative of ‘a serious injury’.

Fundamental Dishonesty?

HHJ Hampton concluded that this was not a case where there had been ‘fundamental dishonesty’ on the part of the claimant. The claimant had not ‘faked injury, or continuing pain, for the purpose of financial gain’, so grounds for dismissal under the 2015 Act had not been established.

In making this finding, the judge cited a 2002 issue of the Clinical Medicine journal, wherein Dr Christopher Bass (Consultant Psychiatrist) and Dr Tim Jack (Consultant Anaesthetist) highlighted a difference between ‘faking’ of pain and ‘exaggeration’ of pain:

‘Outright faking of pain for financial gain is rare, but exaggeration is not, especially if the patient is involved in litigation. It is often difficult to determine whether this represents an attempt to convince or deceive the clinician’.

Smith was not an example of ‘outright faking of pain’. The judge did, however, assess that there was an ‘element of exaggeration’:

Faking pain, as described by the learned authors referred to above, would almost undoubtedly amount to fundamental dishonesty. Exaggeration, with mixed motives of attempting to convince or deceive, is not.

Accordingly, there had been a ‘degree of overstatement’, or ‘embellishment’ of the claimant’s pain and ‘this was the result of an attempt by him to convince, rather than to deceive’.

Full text judgment can be accessed here.

Comparison with Other Fundamental Dishonesty Rulings

LOCOG v Sinfield [2018] EWHC 51 (QB), a ‘fundamental dishonesty’ decision which we reported in edition 216 of BC Disease News (here), was cited by HHJ Hampton, at paragraph 65 of the Smith judgment:

‘In the High Court decision in LOCOG v Sinfield [2018] PIQR 8, in which the Claimant fabricated receipts to support an unjustified claim for gardening services, the claim was struck out. The Claimant in this case has not been shown to have fabricated evidence to that extent.

On assessment of ‘fundamental dishonesty’, Mr Justice Knowles formulated a test, at paragraph 62-65 of his judgment:

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Is an exaggerated claim for gardening expenses less ‘fundamentally dishonest’ than an ‘overstated’ injury? Does an exaggerated claim for gardening expenses get closer to the ‘root’ or ‘heart’ of the claim than an ‘overstated’ injury?

There may be some inconsistency between the 2 cases.

More recently, we reviewed the case of Wright v Satellite Information Services Limited [2018] EWHC 812 (QB) (here), in which the claimant ‘had not deliberately attempted to overstate his case’. In Wright, ‘inadvertent’ exaggeration of an injury was not ‘fundamentally dishonest’.

In Smith, the claimant was not ‘inadvertent’ in his exaggeration of injury, nor was he ‘deceitful’ (like the claimant in Pinkus v Direct Line [2018] EWHC 1671 (QB) – reported here). He was in a state of wanting to ‘convince’, which is not ‘fundamentally dishonest’, according to HHJ Hampton.

Deciding Factors?

There are several factual elements, specific to this case, which may have influenced HHJ Hampton’s finding in the claimant’s favour. We will consider these in turn.

Firstly, the defendant relied on evidence which showed that the claimant had continued to engage in work activity, though the claimant maintained that he was ‘unable to work’.

It was submitted that financial transactions in the claimant’s bank statements, ‘which relate to receipts from customers and the purchase of plumbing and other building materials’, provided proof of work engagement. The claimant was criticised by the defendant for ‘vague and evasive’ responses to this line of questioning, in which he asserted that payments were received on behalf of his son.

On this particular issue, the judge accepted the claimant’s submissions as being ‘entirely genuine’ and considered it to be relevant that:

‘The Claimant was not forewarned about this line of cross-examination, by any Part 18 requests to explain transactions in his bank account’.

Thus, if a defendant party is prepared to argue ‘fundamental dishonesty’, it is important to submit exhaustive and detailed Part 18 requests, which allude to the intended line of cross-examination at trial.

Another influential factor was explained by the County Court judge at paragraph 3 of her judgment:

‘The trial of this case ... has been characterised ... by a hostility to the Claimant on the part of the Defendant’s representatives and medical experts, which I find surprising in the context of modern litigation, particularly from the medical experts engaged’.

She went further, accusing the defendant of ‘bad faith’ in its approach to introducing evidence that was damaging to the claimant’s integrity. What is more, she empathised with the claimant, who had been ‘required to resist the Defendant’s vigorous attempts to avoid responsibility’, even though defendant was at fault.

The judge’s decision therefore clarifies that a defendant will be in a better position to succeed on grounds of ‘fundamental dishonesty’ if all of the attention, with respect to conduct, are focused on the claimant. The defendant’s conduct in Smith created the necessary ‘substantial injustice’ [see s.57(2) of the 2015 Act] to circumvent dismissal of the primary claim.