FUNDAMENTAL DISHONESTY: INACCURATE STATEMENT OF MEDICAL TREATMENT WAS DISHONEST: NO “SUBSTANTIAL INJUSTICE”

One of the many complex issues that Mrs Justice Cockerill considered in Razumas v Ministry of Justice [2018] EWHC 215 (QB) today was the question of fundamental dishonesty.  The claimant gave a misleading account of medical treatment. He was found to be fundamentally dishonest. This did not give rise to “substantial injustice”.

“The Defendant points  out that this conclusion as to Mr Razumas’ evidence means the positive averment and allegation in the Particulars of Claim (and repeated in Mr Razumas’ evidence) was false to his knowledge. It submits that it follows that he has sought to base one of his allegations of negligence on a false assertion that he sought treatment, and this means that he has been “fundamentally dishonest” in an aspect of his claim and the claim fails pursuant to section 57 of the Criminal Justice and Courts Act 2015.”

A PROBLEM FOR A CLASS OF CLAIMANTS

This case highlights the difficulties faced by those acting for prisoners, or those with drug addictions. Sometimes a claimant’s understanding of the “truth” can be extremely flexible. However the standard appears to be an objective one, not a subjective one.

THE CASE

The claimant brought an action against the Ministry of Justice alleging, in essence, clinical negligence, due to medical treatment received whilst he was in prison. The case failed on its merits, and contains an important discussion of the nature of the non-delegable duty of care and issues relating to causation.  It is also an important case in relation to the direct duty of care that the prison service owes a prisoner in relation to health care.

FLUCTUATIONS IN ACCOUNT

One of the allegations made by the claimant was that he had undertaken surgery (essentially at a time when he was “on the run” having committed crimes.   The judge rejected this assertion, the claimant accepted “in broad terms” that his evidence in this respect was a lie.

1. …. As to alleged appointment, the position is that despite attempts by Mr Razumas’ solicitors, no records of these medical consultations have been obtained. Nor have they been able to identify the charity which Mr Razumas says arranged the visit. Theirs were not the only enquiries; it is clear that healthcare staff in the prison took a number of steps to confirm the identity of the GP and the hospital at which the operation was to be performed, also without success.

2. There are also issues raised by the fluctuations in Mr Razumas’ account. On 15 June 2015 Mr Razumas was interviewed by Professor Grimer and told him that he had not registered with a GP or been to hospital but simply got on with his life, and that for much of the period he was on the run from the police after taking a car at knife point. Professor Grimer also records that Mr Razumas said that he had lied about this appointment (and his family medical history) to get attention from the medical staff at HMP Bedford.

3. In his evidence Mr Razumas accepted in broad terms that his evidence about the surgery was a lie, although he suggested that there might have been an appointment for some other intervention – such as drainage (which, as I have noted above, has not been suggested to be a treatment for Mr Razumas’ actual condition).

4. The Defendant therefore invites me to conclude that there was no such appointment and that Mr Razumas made a deliberate choice between August 2011 and July 2012 not to seek medical attention. It submits that given the concerns that he had previously expressed, his behaviour was unreasonable, particularly if one of the reasons for this decision was because he was trying to evade arrest by the police for a robbery that he had committed.

5. Although some cross examination was directed to this point, no case was advanced in closing that Mr Razumas would not have been treated in the community. That position seems to me to reflect the evidence which I heard, which indicated that Mr Razumas would have been seen at A&E if he had difficulty registering with a GP, though the likelihood of his condition being diagnosed was possibly less at an earlier stage when the symptoms were less manifest. It is therefore apparently common ground that if Mr Razumas had sought treatment following his release from prison in August 2011, by the time of his return to prison in July 2012 a local excision would have been performed and the tumour removed.

6. I accept the Defendant’s submissions. Mr Razumas’ evidence as to the alleged appointment was confused and unconvincing. He accepted that he had lied in one respect about it. He was then not straightforward about his actions, shifting ground in order to try to justify his position. I concluded that I could place no reliance on his evidence in this respect. Further it is implausible that if he had had such an appointment it could not have been traced during the course of this litigation. I therefore accept that he failed to seek medical treatment during the relevant period.

7. It seems likely that his reason for doing so was that he did not want to bring himself to the attention of the authorities, given that he had reverted to criminal behaviour. That may be understandable (as was argued on his behalf) on an empathetic level, it is not however, as a matter of law, reasonable behaviour. His actions therefore in my judgement amount to an intervening cause, preventing recovery for any established breach relating to this period.

FUNDAMENTAL DISHONESTY

The judge considered the issue of fundamental dishonesty.

Section 57 Criminal Justice and Courts Act 2015

1. 1. The Defendant points out that this conclusion as to Mr Razumas’ evidence means the positive averment and allegation in the Particulars of Claim (and repeated in Mr Razumas’ evidence) was false to his knowledge. It submits that it follows that he has sought to base one of his allegations of negligence on a false assertion that he sought treatment, and this means that he has been “fundamentally dishonest” in an aspect of his claim and the claim fails pursuant to section 57 of the Criminal Justice and Courts Act 2015.

   2. It is common ground that this provision is applicable to this case and which provides:

“Personal injury claims: cases of fundamental dishonesty

(1) This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”)-

(a) the court finds that the claimant is entitled to damages in respect of the claim, but

(b) on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.

(2) The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.

(3) The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.

(4) The court’s order dismissing the claim must record the amount of damages that the court would have awarded to the claimant in respect of the primary claim but for the dismissal of the claim.”

1. 1. The Defendant submits that although the allegation in question is only one of a number of allegations over a period of time it is one if which proven was all that was needed to establish liability because it involved breach of non delegable duty, and also the alleged direct duty. Thus it is said that the allegation was a central part of the case, not a collateral or minor part of the case.

   2. The Claimant urged me to regard the dishonesty as being some way from the test of fundamental dishonesty. It was submitted that even if the court should find that Mr Razumas lied about the Newham proposed surgery, these untruths “barely scratch the bark” and go nowhere near the root of the case.

   3. The Claimant also submitted that if he were to lose the claim on this basis, he would suffer substantial injustice within the meaning of section 57(2) because of the gross disproportion between the lies and the effect of depriving him of an award.

   4. On the meaning of fundamental dishonesty I was referred to Howlett v Davies and Ageas Insurance Ltd [2017] EWCA Civ 1696 where at paragraphs 16 and 17) Newey LJ endorsed the following passage of the judgment of His Honour Judge Moloney QC in Gosling v Hailo 29 April 2014:

“44. It appears to me that this phrase in the rules has to be interpreted purposively and contextually in the light of the context. This is, of course, the determination of whether the claimant is ‘deserving’, as Jackson LJ put it, of the protection (from the costs liability that would otherwise fall on him) extended, for reasons of social policy, by the QOCS rules. It appears to me that when one looks at the matter in that way, one sees that what the rules are doing is distinguishing between two levels of dishonesty: dishonesty in relation to the claim which is not fundamental so as to expose such a claimant to costs liability, and dishonesty which is fundamental, so as to give rise to costs liability.

45. The corollary term to ‘fundamental’ would be a word with some such meaning as ‘incidental’ or ‘collateral’. Thus, a claimant should not be exposed to costs liability merely because he is shown to have been dishonest as to some collateral matter or perhaps as to some minor, self-contained head of damage. If, on the other hand, the dishonesty went to the root of either the whole of his claim or a substantial part of his claim, then it appears to me that it would be a fundamentally dishonest claim: a claim which depended as to a substantial or important part of itself upon dishonesty.”

1. 1. Through the diligence of counsel I have also been referred in this connection to the very recent judgment of Julian Knowles J in London Organising Committee of the Olympic and Paralympic Games v Haydn Sinfield [2018] EWHC 51 (QB) in which Mr Sinfield who had suffered an injury for which the LOCOPG was liable, claimed (as a not insignificant part of his loss) gardening expenses which were found to have been advanced dishonestly, supported by faked invoices.

   2. Having reviewed the numerous County Court authorities and the debates on the Act, the learned judge said as follows:

“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’s 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’s interests, notwithstanding that the defendant may be a multi-billion pound insurer to whom £9000 is a trivial sum.”

1. 1. The learned judge then held that on that test, Mr Sinfield had indeed been fundamentally dishonest and dismissed the whole claim under section 57(2) of the Act.

   2. I gratefully adopt the test set out by Julian Knowles J and ask myself first: Did Mr Razumas act dishonestly in relation to the primary claim and/or a related claim? To this the answer must be yes. He has one main claim, and the dishonesty went to one route to succeed on it in full. Has he 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? Again the answer must be yes. The argument which he advanced went to an entire factual section and pleaded occasion which would have entitled relief on the main claim. Thus the first part, fundamental dishonesty is made out.

   3. I do not consider that there could be any way out for Mr Razumas via the argument on substantial injustice. 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.

   4. In the Sinfield case Julian Knowles J had no difficulty in dismissing this argument in the context of a dishonesty which went only to part of the quantum claimed. At [89] he stated that it was plain from section 57(3):

“….something more is required than the mere loss of damages to which the claimant is entitled to establish substantial injustice. Parliament has provided that the default position is that a fundamentally dishonest claimant should lose his damages in their entirety, even though ex hypothesi, by s 57(1), he is properly entitled to some damages. It would render superfluous s 57(3) if the mere loss of genuine damages could constitute substantial injustice.”

1. This, it seems to me, must be right. Something more is required. That something more is not made out here and so, if there were a claim it would fail at this stage.