CLAIMANTS WERE NOT CREDIBLE: DEFENDANT’S APPEAL SUCCESSFUL: “THE DEFENDANT PRESENTED AN ANSWERABLE CASE THAT THE CLAIMANTS FAILED TO PROVE THEIR CASE”
In Richards & Anor v Morris  EWHC 1289 (QB) the defendant was successful in appealing on the grounds that the trial judge should have made more robust findings from the lack of credibility on the part of the claimants. There are important points made in relation to assessing witness credibility. Also a reminder to defendants that there is an appropriate procedure to follow when dishonesty is being alleged.
Once again we see witness statements saying things that are simply not true, and schedules claiming losses that have not been incurred. There is also the question of whether cases such as this should be placed on the Fast Track. The judgment refers to an “unedifying” exchange when matters were being rushed because the courts were closing.
“In my judgment, through the evidence produced in this case to the court below, whether documentary or cross-examination of the Claimants, the Defendant presented an unanswerable case that the Claimants had failed to prove their case.”
Two claimants had been awarded damages of £2,500 each by the trial judge in a trial following a road traffic accident. The defendant appealed, arguing that there should have been findings of fundamental dishonesty.
ERRANT WITNESS STATEMENTS
Once again we have witness statements that were stating things that were simply not true.
On 12 November 2015, both Claimants also served witness statements. So far as the First Claimant is concerned, she described the accident, stating it was not a gentle reverse by the Defendant but “she reversed sharply to avoid the cars coming towards her on the main road.” She referred to the assessment of her motorcar by Laird. She then said this:
“13. I started to feel discomfort in my neck, towards my lower back area and shoulder later that day. I also [had] minor discomfort across my chest where the seat belt was. I did however immediately feel shocked and shaken at the accident scene due to the collision. The pain and discomfort increased over the next day or so, so I decided to get checked out by my GP just in case. I saw my GP on 21stJuly and I was advised to take painkillers.
14. The pain and discomfort did not ease and I continued to take painkillers. I had a pre-existing problem with my back which the accident worsened. When I saw Dr Iqbal in December 2014 he recommended physiotherapy treatment. …
17. Since the medical examination by Dr Iqbal I’ve been having physiotherapy treatment. That treatment is on-going. …
19. As a result of the injuries I suffered in this accident I also seek to recover the cost of the physiotherapy treatment that my solicitors arranged for me. The total costs are anticipated to be £570.”
However, as we know, 12 days later on 24 November 2015, the First Claimant was discharged from any further physiotherapy. Furthermore if, as she appears to have thought, the effect of the accident was spent within 8 months, that is by March 2015, it is difficult to understand how she could honestly and truthfully have said that the physiotherapy treatment was “as a result of the injuries I suffered in the accident.”
“16. I’ve been involved in three previous accidents, on the 27/7/7, 12/7/10 and 5/6/12. I did sustain some injuries in these accidents but have fully recovered from those injuries by the time of the index accident. My lower back was painful at the time of the index accident, but this was constitutional, not accident related.”
“12. I started to feel discomfort in my neck and right shoulder later that day. At the accident scene I did feel immediately shocked and shaken by the collision. I took painkillers on a regular basis for the first few months, then as and when needed as my symptoms improved.
13. When I saw Dr Iqbal in December 2014 he recommended physiotherapy treatment. That physiotherapy treatment is on-going at the moment”
This was untrue. There was no ongoing physiotherapy treatment and there had been none at all, in Mr McGrann’s case. Mr McGrann indicated that, after the accident, he struggled with swimming, exercising and helping Mrs Richards look after her horse, Harvey. He stated:
“15. I’ve been involved in two previous accidents, on 27/7/7 and 12/7/10. I did sustain some injuries in these accidents, but have fully recovered from those injuries by the time of the index accident.
16. I have incurred some financial loss as a result of this accident, as set out within my updated schedule of loss, dated 12th November 2015, which I claim reimbursement of within this claim. These are estimated at £570 for physiotherapy treatment anticipated final costs.”
Mr McGrann did not indicate in his witness statement that, contrary to the impression conveyed, despite the assessment on 19 March 2015, he had not undergone a single session of physiotherapy and, it would appear, did not intend to.”