FINDINGS OF FUNDAMENTAL DISHONESTY SHOULD HAVE BEEN MADE BY TRIAL JUDGE: DEFENDANT’S APPEAL ALLOWED

The previous post dealt with a judgment of Mr Justice Martin Spencer overturning a judgment in favour of the claimant. The judgment in Molodi v Cambridge Vibration Maintenance Service & Anor [2018] EWHC 1288 (QB)   is in similar terms.  Only on this occasion a finding of fundamental dishonesty was made on appeal.  Once again we see inaccurate witness statements, inaccurate information given to doctors and claims made for losses that have not, in fact, occurred.

 

“it is essential that the history given to the medical expert is as accurate as possible. This includes the history in relation to previous accidents as this goes to fundamental questions of causation: whether, if there are ongoing symptoms, those are attributable to the index accident or to previous accidents or to some idiopathic condition of the claimant. “

THE CASE

The claimant had been awarded damages after a trial in a personal injury case. The defendant appealed on the grounds that the trial judge should have made a finding of fundamental dishonesty.

THE CLAIMANT’S WITNESS STATEMENT

The judge considered the claimant’s statement:-

    1. On 12 January 2016, the Claimant made a witness statement in the proceedings in support of his claim. He agreed that he had one passenger in the vehicle with him. In relation to the damage to the vehicle, the Claimant said:
“The other side are taking issue with the fact that I had not provided a repair invoice. I do not understand why this is such an issue. I don’t understand why I should repair something out of my own pocket when the accident was not my fault.”
Thus, the Claimant appeared to be saying in this witness statement that he had not had his vehicle repaired.
    1. The Claimant said in his witness statement that, as a result of the accident, he was unable to work his normal hours for about two weeks: he had to reduce hours because of the pain he was suffering and for three days immediately after the accident, he did not work at all. He said that he had needed the assistance of his wife to assist him with lifting items for a period of about a month and at the time of the statement, “I can confirm that I am still experiencing some pain to my neck and shoulders. However, these seem to be much better than before and [are] gradually improving.”
    2. So far as previous accidents are concerned, he said at paragraph 18:
“I was involved in a previous accident which has been settled and for which I recovered, the date of which I cannot recall. I can confirm that the injuries sustained in that accident were not affecting me at the time of the index accident.”
Thus, the Claimant, having told Dr Idoko that he had only been involved in one previous accident, confirmed this in his witness statement, which he signed and was endorsed with a statement of truth. This was, in fact, not true. The Defendant insurance company has uncovered details of previous accidents: an accident on 10 June 2014 involving Esure Motor Insurance; an accident 2 May 2013 involving Haven Insurance Company Limited which was settled; an accident on 4 April 2013, again involving Haven Insurance Company Limited, which was settled; an accident on 28 February 2013 involving Ageas Insurers which was settled; an accident 27 November 2012 involving Haven Insurance Company Limited which was settled; and an accident on 18 November 2009 involving Axa Insurance which was settled. Mr Wood submitted that the Claimant had been involved in at least five previous accidents, probably more, but he had failed to tell Dr Idoko, he lied in his witness statement and he failed to make any disclosure of documents relevant to the previous accidents.

VEHICLE REPAIR COSTS

The schedule claimed £1,300 for costs of repair to the vehicle.  the claimant’s evidence was that the repair had cost £400.

    1. In relation to the vehicle, Mr Molodi said that he had had his vehicle repaired by a friend of his and that it had cost him about £400. Again, there had been no disclosure of any documentation relating to the repair. There was then this exchange:
“Q: Let us move on from that. The final point, why, if it only cost you, you now say, £400 are you claiming for nearly £1,300.
A: My friend repaired it, if I could take into the other garage it probably cost me that £1,300 including VAT.
Q: So you are happy to put that additional money in your pocket even though it did not cost you that?
A: I did not get that money anyway, I mean …
Judge Main: You are claiming it.
A: Yes.
Q: You are claiming £1,300 for a loss of £500: why?
A: The engineering actually gave that statement …
Q: I know where the evidence has come from, the question is, why are you claiming it?
A: I mean because of his damage my car I spend this £400. Probably, if I take in the garage, not my friend that could have cost £1,300.”
Again, Mr Molodi was unable to give any coherent explanation for why he had claimed £1,300 in respect of repairs which had only cost him, on his evidence £400.
THE PLEADED CASE IN THE DEFENCE
There was an issue in relation the pleadings, the defence pleaded.
“8.1 No visible damage was caused to the First Defendant’s vehicle and no repairs were, or required to be, carried out.
8.2 The Claimant stated to the medical expert that he made GP visit, which contradicts his Claims Notification Form.
8.3 The Claimant stated to the medical expert that he had three days off work (as well as reducing his working hours) which contradicts his Claim’s Notification Form. There is also no claim for loss of earnings.
8.4 The Claimant now claims for 12 sessions of physiotherapy despite the CNF stating there were no rehabilitation needs.
8.5The First Defendant’s driver and his passenger were not injured and have not intimated claims. The First Defendant’s driver refers to a passenger in the Claimant’s vehicle who has also not made a claim. Additionally, the Claimant’s CNF refers to him being the only occupant.”

DEFENDANT’S SUBMISSIONS IN RELATION TO THE PLEADED CASE

The judge largely accepted the defendant’s submissions.

    1. Mr Wood, on behalf of the Appellant, submitted that he was not precluded from alleging fundamental dishonesty against the Claimant by reason of the failure to plead fraud or dishonesty and he submitted that the pleadings, as they stand, do not prohibit me, as an Appellate Court from making determinations of fundamental dishonesty. He referred to Kearsley v Klarfeld [2005] EWCA Civ 1510 at paragraphs 40 onwards and in particular paragraph 49 where Brooke LJ said:

“There is no substantive obligation on the Defendant to plead fraud so long as his reasons for resisting the claim are clearly stated in accordance with CPR 16.5”.

He also referred to the decision of the Court of Appeal in Howlett v Davies[2017] EWCA Civ 1696 where Newey LJ said at paragraph 31:

“31. Statements of case are, of course, crucial to the identification of the issues between the parties and what falls to be decided by the court. However, the mere fact that the opposing party has not alleged dishonesty in its pleadings will not necessarily bar a judge from finding a witness to have been lying: in fact, judges must regularly characterise witnesses to have been deliberately untruthful even where there has been no plea of fraud. On top of that, its seems to me that where an insurer in a case such as the present one, following the guidance given in Kearsley v Klarfeld, has denied a claim without putting forward a substantive case of fraud but setting out ‘the facts from which they would be inviting the judge to draw the inference that the plaintiff had not in fact suffered the injuries he asserted’it must be open to the trial judge, assuming that the relevant points had been adequately explored during the oral evidence, to state in his judgment not just that the claimant has not proved his case but that, having regard to matters pleaded in the defence, he has concluded (say) that the alleged accident did not happen or that the claimant was not present. The key question in such a case would be whether the claimant has been given adequate warning of, and a proper opportunity to deal with, the possibility of such a conclusion and the matters leading the judge to it rather than whether the insurer had positively alleged fraud in its defence.”

  1. So far as the principles of dishonesty and the concept of “fundamental dishonesty” in personal injury litigation are concerned, Mr Wood referred to Gosling v Screwfix an unreported decision of HHJ Maloney QC dated 29 April 2014 where that judge held that exaggeration alone can give rise to a finding of fundamental dishonesty.

JUDGMENT

  1. In the present case, in my judgment, HHJ Main QC adopted a much too benevolent approach to evidence from a claimant which could be demonstrated to be inconsistent, unreliable and, on occasions, simply untruthful. The most glaring example of this relates to Mr Molodi’s clear lie to Dr Idoko, confirmed by Dr Idoko in his Part 35 answers, that he had been involved in only one previous accident when, as conceded by Mr Sweeney, there had been five or six previous accidents or, on Mr Wood’s submissions, some seven previous accidents. Not only had the Claimant lied to Dr Idoko in this regard, but he had also maintained that lie in his witness statement, endorsed with a statement of truth. Even when he gave evidence before HHJ Main QC, the Claimant confirmed that he was happy to rely on the contents of Dr Idoko’s report even though he must have known that it was wrong in a fundamental respect.
  2. The medical evidence is at the heart of claims for whiplash injuries. Given the proliferation of claims that are either dishonest or exaggerated, for a medical report to be reliable, it is essential that the history given to the medical expert is as accurate as possible. This includes the history in relation to previous accidents as this goes to fundamental questions of causation: whether, if there are ongoing symptoms, those are attributable to the index accident or to previous accidents or to some idiopathic condition of the claimant. Furthermore, the knowledge that a claimant has been involved in many previous accidents might cause a medical expert to look rather more closely at what is being alleged on the incident occasion to see whether the claimant is being consistent and whether his reported injuries are in accordance with the reported circumstances of the accident. Once, as here, the Claimant could be shown to have been dishonest in respect of a fundamental matter and then to have maintained that dishonesty through his witness statement and into his evidence before the Court, it is difficult to see how the Learned Judge could have accepted any other part of the Claimant’s evidence or the medical report itself – and, without these, there was nothing left.
  3. However, the Claimant’s dishonesty did not stop there: Mr Wood demonstrated clearly that £1,300 special damages were claimed in respect of a loss which, when investigated in cross-examination, turned out to have been only been £400. There were fundamental inconsistencies between what the Claimant was saying in his witness statement and evidence, and what he had said in the Claim Notification Form. There were inconsistencies in relation to the period before recovery from the injuries. Finally, it appeared that the Claimant had undergone a course of physiotherapy more for reasons to do with his claim rather than for genuine medical reasons.
  4. Mr Wood submits that, pursuant to Section 57 of the Criminal Justice and Courts Act 2015, I should allow this appeal and dismiss this claim for personal injuries on the basis that I am satisfied that the Claimant has been fundamentally dishonest in relation to the claim. I agree with this submission. As in LOCOG v Sinfield [2018] EWHC 51 (QB), so here, the Defendants have proved on the balance of probabilities that the Claimant 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 respect 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” (see paragraph 83 of the judgment of Julian Knowles J.) In my judgment, there was fundamental dishonesty here on the part of Mr Molodi in the respects I have identified and, on that basis, the Judge should have dismissed the entire claim by reference to Section 57 (2). Indeed, I go further and, irrespective of the provisions of Section 57, in my judgment the Learned Judge should have dismissed the claim because, as Mr Wood submitted, the Claimant had failed to prove his case.
  5. In essence, I agree with, and adopt for the purposes of this judgment, the arguments and submissions made by Mr Wood on behalf of the Defendants/Appellants, as set out at paragraphs 28 to 33 above. Although I have not seen the witnesses, and bearing fully in mind the strictures of Lord Reid as set out in Benmax (see paragraph 36 above), I nevertheless consider that this is one of those rare cases where the weight of the other evidence, and in particular the inconsistencies and the failure truthfully to account to the medical expert in relation to previous medical history and previous accidents and the dishonesty in relation to the special damages are such as to justify overturning the finding of Judge Main QC that, having heard the Claimant, he could rely on his evidence as to the fact that he had been injured and as to the duration of his symptoms. On the basis of matters which were either admitted by the Claimant or were shown beyond peradventure to be the case, it also seems to me that a finding of fundamental dishonesty should have been made on the part of the Claimant.
  6. For these reasons, I allow the appeal and dismiss the claim.