A FINDING OF FUNDAMENTAL DISHONESTY: CLAIM DISMISSED – SOCIAL MEDIA AND FACEBOOK PLAY A PART…

In Pinkus v Direct Line [2018] EWHC 1671 (QB) HHJ Coe (sitting as a judge of the High Court) found a claimant to be fundamentally dishonest. It is another example of how the courts can look at social media to come to a view as to the credibility of a witness. There are (to say the least) robust findings against the claimant.

“I find that the fact that he can put posts on social media in the way that he has and clearly get enjoyment from all sorts of everyday activities is a reflection of the fact that he has fabricated/exaggerated his symptoms and even in the first 6 months they were not as severe as he has depicted and this further supports my conclusion that he has significantly exaggerated and fabricated his difficulties.”

THE CASE

The claimant was injured in a road traffic accident on the 21st August 2012. Liability was admitted. The claimant’s case was that he had suffered significant psychological consequences as a result.

THE JUDGE’S ASSESSMENT OF THE CLAIMANT’S CREDIBILITY

(i) Credibility, symptoms and diagnosis
  1. I remind myself that the burden is on the claimant to prove his case and that he must do so on the balance of probabilities.
  2. Apart from my own review of the evidence above, one only needs to read the long summary of the evidence in the case provided by Dr Britton to identify some of the inconsistencies.
  3. The claimant’s legal advisers (and indeed the defendant’s) have proceeded on the basis that the claimant has capacity to litigate. He alleges that he suffers from significant short-term memory loss and other difficulties of memory and recall. He says that his thinking becomes “clouded” or “foggy”. The reports identified that these difficulties are significantly exacerbated in stressful situations. It seems that his solicitors have been able to take instructions successfully and without concerns as to capacity albeit with some adjustments in terms of ensuring a calm atmosphere, face-to-face meetings, appropriate cueing and by references to various sections of documents and so on.
  4. This trial began on Monday 29th January and Mr Pinkus gave his evidence for most of the following day. I do not need to cite all of the examples but in the course of giving his evidence Mr Pinkus was often angry and loud. He shouted on occasions. He questioned Mr Audland QC (counsel for the defendant)’s right to question him or to challenge his credibility. I had to intervene on occasion. I had to remind him to show respect to the court and Mr Audland QC. I had to remind him that he brings his case.
  5. There were parts of his evidence where he was inconsistent. There were parts of his evidence where he said he was simply unable to remember certain events. In the course of his evidence there were occasions when he said that he could not remember either questions he had been asked or things he had said in the course of giving his evidence. For example, he could not recall the question that he had been asked and answered about two questions previously. In response to the claimant’s assertion that this case is all about him obtaining treatment Mr Audland QC reminded him that he is claiming a significant amount by way of damages. The claimant’s response was “Am I?”. He was referred to the schedule of damages which he said he did not remember having seen recently. It was put to him that he had confirmed the statement of truth on that document at the beginning of his evidence. He did not appear to be able to recollect that.
  6. I specifically find that he has exaggerated his symptoms. I find that he has done so consciously. In particular he has given inconsistent accounts of post-traumatic stress disorder symptoms deliberately to relate his ongoing illness to the accident. Additionally, he has exaggerated his memory difficulties. I found his performance in the witness box was unconvincing. I accept that people who have dissociative episodes are likely to be worse under stress and that their ability to remember things may be fluctuating, variable and inconsistent. However, it seemed to me to be noteworthy that Mr Pinkus’s memory failed him when he was being asked more challenging questions about his credibility and his memory was clear when he wished to make a point about the extent of his difficulties. He “lost” simple words, but was able to articulate some complex concepts very well e.g. the concept of mitigation of loss.
  7. As set out earlier his presentation was so concerning that I felt the need to explore whether or not he had capacity. That was particularly in respect of his apparent inability to remember that he was claiming a significant sum of damages and had confirmed the updated schedule of loss and damage very shortly before. He seemed to me to be a reasonably intelligent man fully aware of the nature of his claim. There were some aspects of his presentation which I find were deliberately staged. Dr Howard was struck by the fact that Mr Pinkus attended the second day of his evidence in court clearly not having shaved. I noted the same thing. He was otherwise well-dressed and groomed. In light of some of the rest of my findings I consider that this was a deliberate ploy. There is no mention in any of the records or reports of any lack of personal care (apart from in Mrs Pinkus’s statement in relation to very shortly after the accident when Mr Pinkus is said to have gone to bed for 3 weeks, which I do not accept is reliable in any event). Similarly, Mr Pinkus made great play of his emotional response to his son putting his arm around him when he had, as he claimed, finally revealed the extent of his ongoing difficulties. Dr Howard and the others in court will not have been aware of the fact that having given his evidence whilst at the back of the court for as long as he stayed there Mr Pinkus’s son sat with his arm around his father. He had not done this at the beginning. Again, I consider that this was a show.
  8. I cannot and do not find that he has been entirely genuine in light of his unreliability as a witness and the inconsistencies. I do not consider that these can in any event be explained away by dissociative episodes/memory impairment.
  9. Throughout his evidence, he was displaying extreme forgetfulness and confusion, but when he wanted to emphasise a point in favour of his case or deny a point being made against him he could be clear, articulate and direct. As just one example of this I would cite his elaborate explanation of the “unintentional” calls to Mr Slater (see further para.153 below). His forgetfulness and confusion were most apparent when he was faced with a difficult question or caught out in an inconsistency.
  10. I specifically find that he has deliberately lied about his ability to follow a newspaper or book. He told me that he could not retain the information in a newspaper article and that he would not read a book because he would not retain it. I find that throughout the period of time with which I am concerned he has been well able to read long articles and absorb, process and retain the information and comment on it. Not only is his credibility undermined, but this is further evidence as I find that his problems are not as great as he has said. I can well understand that the man I saw in the witness box might not be able to read an article. He put on a show of struggling with retaining information from a few minutes earlier. That is not consistent with his activities as evidenced by some of the Facebook posts. It is not consistent with the debates he clearly entered into with Mr Slater and Lord Norbury about the referendum to decide whether or not Britain should leave the EU.
  11. I find that there were occasions when he gave his evidence when Mr Pinkus deliberately and consciously lied to me. I find that he lied when he told me how he came to dial Mr Slater’s number in the early hours of Sunday morning before the trial. His tale was elaborate (sleeping on the sofa, phone in hand, not being aware of what was going on when he found the phone ringing) and totally implausible. As Mr Slater himself said given that Mr Pinkus had not previously communicated with him via WhatsApp video, Mr Pinkus would have to have navigated to that screen. In light of the contents of his most recent statement it is apparent that Mr Pinkus not only had fallen out with Mr Slater, but had concerns about the likely gist of Mr Slater’s evidence. I find that that is why he tried to contact him (his long-term former friend) and I find that he tried to contact him twice. As far as Mr Pinkus would have been aware his call was not answered (because of the “quiet hours” feature) and so as I find he tried again.
  12. I find that Mr Pinkus lied to me when he said that he had not told his wife about his illness. First of all, it is completely inconsistent with the account in both of their statements of the reason for his going on the fishing trip to America. Secondly, it is inconsistent with the note of Mr Alishan about his wife not being sympathetic and the further note about her forgetting about the counselling appointment. I do not accept her evidence on this issue either. It would in my view be impossible for Mrs Pinkus not to have noticed the dramatic change in him (including the suggestion that she drove him to work and that he spent three weeks in bed and did not eat). In any event she wrote the statement for Dr Wyer for him at his dictation detailing his accident-related symptoms.
  13. I find that Mr Pinkus was unwilling to accept that he went on a fishing trip and was unwilling to acknowledge to Mr Audland QC in cross-examination that the shop he was referring to on Facebook sold fishing tackle. This was not only a further attempt to minimize his ability to function and exaggerate his difficulties, but also shows he understood perfectly well the significance of what was being put to him.
  14. I find that Mr Pinkus showed that he was liable to dishonesty because I find that he did not intend to declare his earnings from the Stafford Mansions job to the Inland Revenue. I do not accept his account. I find that he did not include the sums he had been paid in the first year covered by that period of tax returns. He was then called upon by the defence to produce his most recent tax returns and since he could not avoid disclosing such tax returns they were completed the Saturday before trial and included all of the Stafford Mansions earnings in the second year’s accounts. I consider that Mr Pinkus was forced into this position by this litigation and would not otherwise have included those sums in his returns. I do not accept that if he had told his solicitors about his earnings, the details would not have appeared in his statement.
  15. Some of these lies are perhaps in respect of peripheral matters, but they cause me to find that Mr Pinkus is on the whole an unreliable witness. On a balance of probability therefore where there are conflicts between witnesses and/or conflicting histories it seems to me that it is more likely than not that Mr Pinkus is exaggerating or lacking credibility in his account.
  16. Despite the overwhelming inconsistencies, the treating clinicians have clearly accepted the account given by Mr Pinkus at face value and attempted to treat him accordingly. The medicolegal experts have found an assessment of his reported problems difficult because there is no normal or recognised pattern. The claimant’s experts have sought to explain away inconsistencies whether by reason of fluctuating symptoms or memory problems. Where the defendant’s experts have pointed out the inconsistencies they have properly indicated that it is for me to resolve issues of credibility whilst acknowledging that they are hard to explain from a clinical point of view.

 

FACEBOOK POSTS

This was another trial where Facebook posts played a part.

 

  1. I find that Mr Pinkus has deliberately exaggerated and/or fabricated symptoms which have worsened on his account with the passage of time and which do not fit a particular pattern because they are not genuine. In particular the claimant’s account of dissociative processes apart from being an inadequate explanation for his bizarre presentation would (if they are severe as the claimant indicates, giving him such difficulties and distress in respect of his amnesia) amount to a dissociative disorder. Accepting the evidence of Dr Neal, such dissociative disorder cannot be a consequence of the post-traumatic stress disorder. There is no reliable evidence that his mind becomes “foggy” or “cloudy” when he is under stress outside of the litigation process and attendance upon treating and/or reporting clinicians. The dissociative experience scales questionnaires are, as I find, unreliable because they are subject to the claimant’s fabrication and exaggeration. He functions well in life in fact.
  2. I accept that he suffered some travel anxiety at the time. I find that he was able to drive to Pinewood Studios for the rest of the time he was working there up until 23rd September and whilst I accept that that would have been uncomfortable for him I do not find that he avoided it.
  3. Having considered the Facebook posts in trial bundle 7A in so far as they provide a contemporaneous account of his frame of mind it would seem that he was able to present an entirely normal face to the world. He has been on enjoyable holidays and partaken in normal family activities. He enters into light-hearted and joking banter with friends. He enters into emotionally warm interactions with friends particularly at times of anniversaries and birthdays and so on. He can successfully interact with strangers in foreign countries. He has over the period of years represented in these posts been on various trips and engaged in various activities. He has entered into some more in-depth serious debates on very many issues of politics and political history.
  4. I find that the fact that he can put posts on social media in the way that he has and clearly get enjoyment from all sorts of everyday activities is a reflection of the fact that he has fabricated/exaggerated his symptoms and even in the first 6 months they were not as severe as he has depicted and this further supports my conclusion that he has significantly exaggerated and fabricated his difficulties.
  5. Dr Neal and Dr Kemp did not draw on Facebook material in reaching conclusions about his psychiatric or neuropsychological diagnosis or formulation. They identified inconsistencies in the account he was giving about his abilities. It is for the court to draw the inferences and I have done so.

 

THE JUDGE’S FINDINGS

The judge found that the claimant had suffered a minor injury and would have received an award of £4,250 damages for pain and suffering and £250 for a policy excess. However the judge went on to make a finding of fundamental dishonesty.

FUNDAMENTAL DISHONESTY

The judge reviewed the statute and the cases in relation to fundamental dishonesty.

    1. This is a personal injury claim to which this s.57 applies, proceedings having been issued in July 2015. The question for me is whether or not I am satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim. I acknowledge that if Mr Pinkus has deliberately fabricated the vast majority of the claim then he has risked an enormous amount financially and potentially personally.
    2. For the reasons set out above 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. In particular it seems to me that he has fabricated his 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.
    3. In the witness box his “performance” was so extreme that I raised an issue as to his capacity to litigate. Having considered all of the evidence now and for the reasons set out above it is apparent to me that this must have been exaggeration and fabrication because the man I saw in the witness box would not be able to function in everyday life in the way that it is apparent that he does. I find it would be incredible if had previously presented in that way that none of the doctors or his lawyers raised the same concern. The consequence in particular is that where any of the experts have expressed a view as to ongoing psychological or psychiatric illness or disability those opinions are fundamentally undermined and there is no diagnosis on the balance of probabilities. Thus, even on a balance of probabilities I am not able to reach the conclusion that he has suffered or is suffering any ongoing disorder or disorders whether attributable to the accident or not.
    4. I also find that he has been dishonest about his pre-accident circumstances and about his post-accident functioning. The details are set out earlier on in this judgement.
    5. I find that he has deliberately begun to report flashbacks or re-experiencing several years after the accident, probably in 2015/16 in order to achieve and maintain a diagnosis of post-traumatic stress disorder. For the reasons given I do not find that he suffers from post-traumatic stress disorder. He did not report flashbacks in the aftermath of the accident so that the early opinions exclude the diagnosis of post-traumatic stress disorder.
    6. I have identified the areas in which I consider he has been dishonest. I find that he has exaggerated the nature and severity of the accident itself. He has deliberately minimised the pre-accident difficulties with Daniel. He has dishonestly suggested he was fired because of a row with his immediate boss in consequence of his loss of anger control. He has been inconsistent and dishonest about his ability to drive after the accident, including the road trip to America. I find that the claimant was dishonest about his ability to read/watch articles, books, newspapers, films and television. That is the basis, his memory loss, difficulties concentrating and his difficulties driving on which he says he cannot work. He has lied about some more peripheral matters, such as the phone call to Mr Slater and not knowing the details of the counsellor for his son, but these are nonetheless significant in my overall assessment of his credibility. I find he attempted to lie about going on the fishing trip, he tried to hide his earnings until he was forced to fill in his tax return and he was not honest when he told me that he had told his solicitors about his plan to earn money decorating, but it had not been included in his statement. He and his wife have exaggerated and fabricated their accounts of his symptoms and their account of Mrs Pinkus not knowing about his difficulties as a result of the accident.
    7. I have considered some recent authorities on findings of fundamental dishonesty. In LOGOC v Sinfield [2018] EWHC 51 (QB) at paragraphs 62 to 63 Julian Knowles J defined “fundamental” in the following way
“62. In my judgment, 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 (as defined in s 57(8)), 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. Dishonesty is to be judged according to the test set out by the Supreme Court in Ivey v Genting Casinos Limited (t/a Crockfords Club), supra:
63 By using the formulation ‘substantially affects’ I am intending to convey the same idea as the expressions ‘going to the root’ or ‘going to the heart’ of the claim. By potentially affecting the defendant’ss liability in a significant way ‘in the context of the particular facts and circumstances of the litigation’ I mean (for example) that a dishonest claim for special damages of £9000 in a claim worth £10 000 in its entirety should be judged to significantly affect the defendant’ss interests, notwithstanding that the defendant may be a multi-billion-pound insurer to whom £9000 is a trivial sum.”
    1. The question for me therefore is whether Mr Pinkus’ fabrication and dishonesty “substantially affects” the presentation of his claim in the sense of “going to the root” or “going to the heart” of the claim. In Sinfield, of a total special damages claim of £14,000 the claimant was found to be dishonest about past and future gardening costs which represented about 42% of the special damages sought and about 28% of the total claim for special and general damages. The dishonesty was premeditated and maintained over many months. That substantially affected the presentation of his case.
    2. In Razumas v Ministry of Justice [2018] EWHC 215 (QB) Cockerill J considered that in the context of that case the claimant’s positive averment and allegation in his particulars of claim and repeated in his evidence that he had sought medical attention whilst outside prison was knowingly dishonest. He had thereby substantially affected the presentation of his case either in respect of liability or quantum in a way which potentially adversely affected the MoD in a significant way thereby meeting the test for fundamental dishonesty within section 57. The learned judge in that case adopted the test set out in Sinfield. She held that the dishonest argument which he advanced went to an entire factual section and pleaded occasion which would have entitled relief on the main claim.
    3. At paragraph 13 the judge said that she did not think that there could be any way out for Mr Razumas via the argument on substantial injustice. She said “it cannot in my judgement be right to say that substantial injustice would result in disallowing the claim where a claimant has advanced dishonestly a claim which if established would result in full compensation. That would be to cut across what the section is trying to achieve. As per Julian Knowles J in Sinfield “something more is required than the mere loss of damages to which the claimant is entitled to establish substantial injustice. Parliament has provided the default position is that a fundamentally dishonest claimant should lose his damages in their entirety even though… he is properly entitled to some damages…”.
    4. In this case Mr Pinkus’s claim for past loss of earnings is pleaded at £231,930. Future loss of earnings/capacity is pleaded at £498,490. Care (in the form of prompting by Mrs Pinkus) is pleaded at £6,638 and future care at £40,068. These two items represent the vast bulk of the claimant’s claim. It is suggested that general damages are worth £55,000. The claimant’s dishonesty is as I find, “close to the heart” of his claim.
    5. In Molodi v Cambridge Vibration Maintenance Service and Aviva Insurance [2018] EWHC 1288 QB Martin Spencer J allowed the defendant’s appeal against an order in the County Court giving judgement for the claimant in the sum of £4,397. Essentially, the case turned on the inconsistencies and contradictions (see paragraph 32 of the judgement) in relation to: the cost of repairs; the details in the claims notification form with regard to time off work; physiotherapy; whether or not the claimant had a passenger; and a failure to report previous accidents to a medical expert.
    6. In Richards v Morris [2018] EWHC 289 QB Martin Spencer J again identified the particulars (paragraph 67) in which the evidence had been inconsistent and “hopelessly” so. Although he did not make a finding of fundamental dishonesty (not having seen the witnesses) he allowed the appeal.
    7. Finally, in Wright v Satellite Information [2018] EWHC 812 QB, Yip J dismissed the defendant’ss appeal against the judge’s decision not to find the claimant had been fundamentally dishonest in relation to his personal injury claim. It was the defendant’ss case that surveillance evidence had shown that the claimant was far less disabled than he claimed but nonetheless the claimant had been broadly consistent in what he had said in relation to the need for ongoing assistance. The rejection of the care claim was found to have flowed from a proper analysis of what was actually being done for the claimant and the conclusion that it did not properly sound in damages because “it was almost impossible… to value such occasional assistance”. That was not the same as dishonesty. The trial judge was entitled to make findings of fact that he did and interpret the evidence as he did.
    8. That is not the situation in this case and 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. I have recorded the amount of damages that would have been awarded to the claimant in respect of primary claim but for dismissal of the claim.
Conclusion
  1. In the circumstances, the claimant’s claim is dismissed in its entirety.
  2. Through the defendant’s counsel, Mr Audland QC, I have been referred to Aviva v Kovacic [2017] EWHC 2772 (QB) and I am invited to indicate whether I am satisfied to the criminal standard of proof in respect of my findings of deliberate exaggeration and dishonesty. I confirm that I am so satisfied.