PROVING THINGS 148: FUNDAMENTAL DISHONESTY PROVEN: NO NEED TO WAIT FOR ASSESSMENT OF DAMAGES
In Patel v Arriva Midlands Ltd & Anor  EWHC 1216 (QB) HHJ Melissa Clarke (sitting as a High Court Judge) accepted the defendant’s argument that the claimant was fundamentally dishonest. The claim was struck out under Section 57 of the Criminal Justice and Courts Act 2015. The judge found that a defendant did not have to wait until quantification of damages before a Section 57 application could be heard. Further, on the evidence, she was entitled to find that the claimant had capacity,
“In my judgment, the costs of full quantification (both to the parties and in terms of the call on the resources of the court) are likely to be both unnecessary and disproportionate, in breach of the Overriding Objective.”
The claimant was injured when struck by a bus. Liability was established after a trial, with the claimant being 40% contributory negligent. The claimant was examined by a number of doctors where he was found to be mute and unresponsive. There was no clinical explanation for this and a psychiatric diagnosis was considered.
THE VIDEO EVIDENCE
The defendant obtained video evidence which showed the claimant leading a fairly normal lifestyle. After seeing the video evidence the defendant’s expert noted the “striking contrast” between video and the examination. The defendant’s evidence was clear – that the claimant’s symptoms were feigned.
EVIDENCE AT THE APPLICATION
The claimant’s expert was reported to have said that he wanted nothing more to do with the case. The claimant did not call medical evidence in response (although directions had been made which enabled him to call evidence).
The claimant produced witness statements, however those witnesses were not made available for cross-examination. The defendant’s expert gave written evidence that the claimant’s injuries were feigned. The claimant did not require that expert to attend the application and his evidence was admitted on that basis.
THE JUDGE’S FINDING IN RELATION TO CAPACITY
The claimant conducted the case on the basis he had no capacity. The judge held that, despite the evidence of the claimant’s doctor, she was able to find that the claimant had capacity.
I am satisfied on the balance of probabilities that Dr Fleminger’s capacity assessment was made on the basis of incorrect information gleaned from the Claimant’s presentation and from what he was told by Chirag Patel of the Claimant’s disabilities, namely that the Claimant was unable to communicate any decision he has made. This cannot be correct in the light of: (i) the witness evidence of the Claimant’s witnesses which describe that the Claimant is able to communicate, although say he is often unresponsive. In particular Anita Patel says “sometimes he does chat” and Sushil Taylor says “occasionally he does talk”; and (ii) the evidence of the surveillance footage, which appears to show the Claimant talking to his son and others, and reading documents. In those circumstances, in my judgment Dr Fleminger’s capacity assessment cannot establish a lack of capacity pursuant to section 1(1) MCA, and the Claimant must be presumed to have capacity unless it is later established, on the basis of a full and true understanding of the Claimant’s condition and abilities, that he lacks it.
In addition, Dr Fleminger’s capacity assessment ties the Claimant’s capacity to the outcome of his conversion disorder. If I were to accept Dr Schady’s post-surveillance opinion that there is no conversion disorder, I am satisfied that Dr Fleminger’s assessment of the Claimant’s lack of capacity could not stand. For reasons which will become apparent later in this judgment, I do accept Dr Schady’s opinion. Once again that leaves the Claimant with a presumption of capacity.
THE TIMING OF THE APPLICATION
The judge rejected the claimant’s argument that the application was premature.
The Claimant submits that in the facts of this case, the s57 application has been made too early, and should not be determined until all matters relating to quantification of the claim are tested and ventilated, and findings made, at a quantum trial. I note from the costs judgment of Mr Derek Sweeting QC that the Claimant’s case in March 2018 was that the Defendants’ s57 application was made too late, not too early, because it should have been made before the trial on liability. That argument was rejected as being counter to the requirement in s57(1)(a) that the entitlement of the claimant to damages must be established first.
In any event, it seems to me that this submission should properly have been made at the directions hearing before Master Brown, who was setting the timetable for the s57 application to be heard. I do not know if it was or not, but if it was, it did not succeed before him. Nonetheless the Claimant has not sought to appeal his directions order, nor has he made an application to vary the directions or seek different directions.
THE ABSENCE OF EXPERT EVIDENCE FROM THE CLAIMANT AND THE INFERENCES TO BE DRAWN
The Claimant submits that it is impossible for the court to make a finding of fundamental dishonesty on the basis of untested witness statements from family members and friends stating that the Claimant has serious difficulties and that those difficulties are variable, i.e. he has good days and bad days. To do so, Mr Hunjan argues, the court must be satisfied and find that all of those witnesses are lying, without testing the evidence.
I do not accept this submission. Those witnesses describe a picture of the Claimant’s condition which is, in my judgment, wholly at odds with how the Claimant presented to Dr Fleminger and Dr Schady, and what they were told by Chirag Patel. Accordingly even if I take their evidence about the Claimant’s condition at its highest, and assume that it is true, it does not answer the inconsistencies between what those experts saw and were told when they visited the Claimant, and how the Claimant appears on the video surveillance. In my judgment it supports the Defendants’ case.
As I have already stated, I consider that the Claimant has had ample opportunity to obtain further expert evidence to support Dr Fleminger’s original diagnosis and the Claimant’s pleaded case that he has a conversion disorder, and/or that a conversion disorder can display the great variations in capability and presentation that the Claimant’s witnesses describe and that the Claimant says the surveillance evidence shows, and to seek to rely on it at the hearing of this s57 application. He has known of the surveillance evidence since September 2017 and of this application since March 2018.
It is unclear to me how obtaining the range of expert evidence that Mr Hunjan has outlined at, no doubt, great cost and significant delay, will assist me in determining the discrete issues that I must decide. It seems to be no more than a fishing expedition to see if any experts can be found, now that (I am told) Dr Fleminger is no longer willing to be involved, who will contradict the clearly expressed and agreed view of the experts in this case that (i) a hallmark of conversion disorder is consistency; and (ii) if this is not a conversion disorder, the Claimant’s disability is feigned. In my judgment, the costs of full quantification (both to the parties and in terms of the call on the resources of the court) are likely to be both unnecessary and disproportionate, in breach of the Overriding Objective.
THE JUDGE’S FINDINGS
The judge went on to find that:
- The claimant was dishonest.
- The claimant was fundamentally dishonest.
- There was substantial injustice in striking out the claim.
The judge rejected the argument that the court could not assess substantial injustice without a full quantification of the claim. She also rejected an argument that the court could not find on this issue without hearing evidence, The claimant had not raised any real argument that striking out would cause substantial injustice. Further the argument that the claimant required considerable care for the rest of his life was incompatible with the findings that “conversion disorder” was not established.
The entire claim was struck out.