HIGH COURT JUDGE OVERTURNS FINDING THAT THERE WAS NO FUNDAMENTAL DISHONESTY: CLAIMANT HAS TO PAY DEFENDANT’S COSTS

In Pegg v Webb & Anor [2020] EWHC 2095 (QB) tMr Justice Spencer overturned a finding of a trial judge that a claimant had not been fundamentally dishonest.  The claimant had been dishonest in the failures to give full disclosure to the medical expert.

“In my judgment, on the basis of the above, no judge could reasonably have failed to have come to the conclusion that the claim for damages as presented by the Claimant in this action was a fundamentally dishonest one, perpetrated by fundamentally dishonest accounts to the only medical expert and in the various court documents.”

THE CASE

The claimant was a passenger in a car involved in an accident.  The accident was wholly the fault of the defendant driver.   The trial judge rejected an argument that this was a “bogus” accident.  However the defendant also argued that the claimant had been dishonest in giving information to the reporting doctor.

1. 1. However, at trial the Defendant had a second string to its bow, namely in relation to the damages claimed by the Claimant based upon the report of Dr Shakir. Clearly, if the learned judge had found that the collision was bogus, it would have followed that Mr Pegg’s claim to have been injured and the information he gave to Dr Shakir about his injuries would equally have been wholly bogus. Independently of this, though, the Defendant alleged that the Claimant had so exaggerated his injuries and had so misled Dr Shakir, both in what he said and what he failed to say, that he had been fundamentally dishonest in relation to his injuries even on the basis that there had been a genuine collision on 2 June 2016. To a certain extent, the learned judge acceded to the Defendant’s submissions in that he found that there had indeed been a failure on the part of the Claimant to give Dr Shakir relevant information and what he told Dr Shakir about the longevity of the injuries was inconsistent with his own evidence at trial such that no reliance could be placed upon Dr Shakir’s medical report and, without medical support, the claim had to fail. However, despite this, the learned judge did not make a finding of fundamental dishonesty and the Defendant’s complaint is that, in failing so to find, the learned Judge ignored or failed to take adequate account of matters pointing to fundamental dishonesty which were “staring him in the face” and he failed to follow his own findings to their logical conclusion.

   2. In order fully to understand the Defendant’s case, it is necessary to explore the history in a little detail. The accident took place on 2 June 2016. The Claimant sought no medical help of any kind at the time: he did not attend upon his own GP, nor did he attend the hospital walk-in centre or Accident and Emergency Department. The Claimant did, though, instruct Winn Solicitors and they arranged for the medical examination and report of Dr Shakir and a course of physiotherapy. The date of the initial assessment and treatment session by the physiotherapy clinic (On Medical Limited of Heaton Road, Newcastle-upon-Tyne) was 23 June 2016 (see paragraph 40 of the Claimant’s witness statement), 3 weeks after the accident. There is an invoice from On Medical to Winn Solicitors dated 20 July 2016 showing that, after the initial assessment and treatment, the Claimant underwent three further treatment sessions and finally there was a discharge evaluation. Thus, by the time of the issue of the invoice, on 20 July 2016, the physiotherapy treatment was complete and the Claimant had been discharged.

   3. In the meantime, documents disclose that, on 2 July 2016, exactly one month after the index accident, the Claimant had a fall when he rolled his quad bike. Then, four days later on 6 July 2016, the Claimant was lifting his quad bike and felt sudden onset of pain to his left lower back. He attended the emergency department of the University Hospital of North Staffordshire at 9.10pm complaining of pain in his lower back and his left leg. The diagnosis was “musculoskeletal (non-trauma)” and he was discharged with a prescription of Diazepam and Codeine with referral to physiotherapy. Two days later on 8 July 2016, the Claimant attended the Walk-in Centre at Stoke-on-Trent. The note of that attendance was as follows:

“PC [presenting condition] – injury left lower back/hip

HPC [history of presenting condition] – 6/7 [6 days] ago fell rolled quad bike – no injury noted at time but noticed stiffness to left leg. Lifting quad bike 2/7 [2 days] ago and felt sudden onset of pain to left lower back. Attended A & E and advised disc injury. Today S/B [seen by] physio and stated pelvis not working on left side – felt improvement for approx. 20 mins then pain returned. Taken diazepam and co-codamol. Paracetamol and Nurofen and using Voltarol gel with very little improvement. Attended today as would like a pelvic and hip x-ray to exclude fracture.

PMH [previous medical history] slipped to lumbar spine; diabetes, arthritis – bi-lateral ankle surgery

Medication – Metformin; codeine; analgesia as above

Allergies – nil known

O/E [on examination] weight bearing with limp to left leg. Walking with foot in external rotation but patient reports actively doing this to make walking less painful. Altered sensation to left thigh but no change since being examined by doctor in A & E. Anal tone intact. No bladder or bowel disfunction. No shortening or abnormal external rotation to left leg – some external rotation to ankles bi-laterally post-surgery to ankles. No bony tenderness to hip or pelvis – pelvis stable on rocking and no crepitus or increased pain. Able to internally and externally rotate at hip. Able to flex and extend at hip. Painful on all movements due to back injury.

Impression – sciatica/lower back injury as diagnosed in A & E – no clinical indication for hip or pelvis x-ray at this time.

Plan – patient reassured – advised contact 111 over weekend if unable to tolerate pain for analgesia review. Understood by patient and happy with this.”

It may be commented that the failure of the Claimant to make any mention of the injuries arising out of the index road traffic accident a month earlier and his alleged ongoing symptoms as a result of that accident is something of a “deafening silence”.

THE JUDGMENT ON APPEAL: THERE SHOULD HAVE BEEN A FINDING OF FUNDAMENTAL DISHONESTY ON THE BASIS OF THE MEDICAL EVIDENCE

The Court of Appeal had little difficulty in overturning the trial judge’s findings that there was no dishonesty.  Further that dishonesty was clearly fundamental.

1. 1. The first ground of appeal is that Judge Rawlings was wrong in failing to find the Claimant fundamentally dishonest pursuant to CPR 44.16. By the provisions of part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which came into force on 1 April 2013, the right of claimants to recover from defendants the costs of success fees and after the event insurance premiums was abolished. The “quid pro quo” for this, in personal injury actions, was “Qualified One-way Costs Shifting” (“QOCS”). This was a form of costs protection for such claimants whereby they would not be liable to pay the full costs of the defendant in cases which were unsuccessful. CPR part 44.14 provides:

“… Orders for costs made against the claimant may be enforced without the permission of the court, but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.”

Parts 44.15 and 44.16 then provide for exceptions to QOCS where permission is not required (44.15) and permission is required (44.16). Part 44.16 provides

“Orders for costs made against a claimant may be enforced to the full extent for such orders with the permission of the court where the claim is found, on the balance of probabilities, to be fundamentally dishonest.”

1. 1. The concept of fundamental dishonesty was considered by HHJ Moloney QC in Gosling v Hailo (unreported) where he stated:

“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.”

This was endorsed by the Court of Appeal in Howlett v Ageas [2017] EWCA Civ 1696.

1. 1. In the present case, where the damages claimed are confined to pain, suffering and loss of amenity in relation to the injuries and the cost of physiotherapy, dishonesty as to the extent of the injuries would, in my judgment, be fundamental because the extent of the claimant’s injuries is not merely incidental or collateral but forms the very basis of the claim. This is shown by, if nothing else, the fact that the learned judge, having been unable to find the injuries claimed proved, dismissed the claim. If, then, Judge Rawlings should have found the Claimant to have been dishonest in the way he had presented his claim for damages by reference to the injuries sustained in the accident, it would follow, as it seems to me, that this was not merely dishonesty, but fundamental dishonesty.

   2. So far as the concept of “dishonesty” is concerned, the test for dishonesty at common law was restated by the Supreme Court in Ivey v Genting Casinos Limited [2018] AC 391 at paragraph 74:

“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

1. 1. Also, by way of preliminary observation, it is relevant to consider the appellate jurisdiction of the High Court in an appeal of this nature. By CPR 52.21, an appeal to this court from the County Court is limited to “a review of the decision of the lower court”. Pursuant to 52.21(3) the appeal court will allow an appeal where the decision of the lower court was either wrong or unjust because of a serious procedural or other irregularity in the proceedings. By 52.21(4) the appeal court “may draw any inference of fact which it considers justified on the evidence.”

   2. The scope of an appellate court was further elucidated by the House of Lords in Benmax v Austin Motor Company Limited [1955] AC 370 where it was held that there was a distinction between the finding of a specific fact and the finding of fact which is really an inference drawn from facts specifically found. In the case of “inferred” facts, an appellate tribunal will more readily form an independent opinion than in the case of “specific” facts which involve the evaluation of the evidence of witnesses, particularly where the finding could be founded on their credibility or bearing. In the course of his judgment, Viscount Simmonds LC cited from the judgment of Lord Cave LC in Mersey Docks and Harbour Port v Proctor [1923] AC 253 at 258-9 where Lord Cave said:

“It is the duty of the court of appeal to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into question, but with full liberty to draw its own inference from the facts proved or admitted, and to decide accordingly.”

Viscount Simmonds went on to say:

“This does not mean that an appellate court should likely differ from the finding of a trial judge on a question of fact, and I would say that it would be difficult for it to do so where the finding turns solely on the credibility of the witness. But I cannot help thinking that some confusion may have arisen from failure to distinguish between the finding of a specific fact and a finding of a fact which is really an inference from facts specifically found, or, as it has sometimes been said, between the perception and evaluation of facts.”

Thus, in the present case, it is submitted on behalf of the appellant that it is in relation to the evaluation of the facts which Judge Rawlings found or should have found that he went wrong.

1. 1. Mr Smith, for the Defendant, referred me to the remarks I made in Molodi v Cambridge Vibration Maintenance Service [2018] EWHC 1288 (QB) at paragraph 42 and although the present case is not a “whiplash” case, I consider that those remarks have equal applicability:

“The problem of fraudulent and exaggerated whiplash claims is well recognised and should, in my judgment, cause judges in the county court to approach such claims with a degree of caution, if not suspicion. Of course, where a vehicle is shunted from the rear at a sufficient speed to cause the heads of those in the motor car to move forwards and backwards in such a way as to be liable to cause ‘whiplash’ injury, then genuine claimants should recover for genuine injuries sustained. The court would normally expect such claimants to have sought medical assistance from their GP or by attending A & E, to have returned in the event of non-recovery, to have sought appropriate treatment of physiotherapy (without the prompting or intervention of solicitors) and to have given relatively consistent accounts of their injuries, the progression of symptoms and the timescale of recovery when questioned about it for the purposes of litigation, whether to their own solicitors or to an examining medical expert or for the purposes of witness statements. Of course, I recognise that claimants will sometimes make errors or forget relevant matters and that one hundred percent consistency and recall cannot reasonably be expected. However, the courts are entitled to expect a measure of consistency and certainly, in any case where a claimant can be demonstrated to have been untruthful or where a claimant’s account has been so hopelessly inconsistent or contradictory or demonstrably untrue that their evidence cannot be promoted as having been reliable, the court should be reluctant to accept that the claim is genuine or at least deserving of an award of damages.”

The present case is unusual in the sense that the weaknesses in the evidence led Judge Rawlings to conclude that the Claimant had failed to prove any injury or loss at all and he thereby dismissed the claim. However that reasoning did not lead the judge to draw an inference or make a finding that the Claimant had been dishonest. Should it have done?

1. 1. In my judgment, there are factors in this case which pointed strongly, if not inexorably, to the conclusion that the Claimant had been dishonest in his presentation of his injuries to the expert instructed, Dr Shakir, and also to the court, but which Judge Rawlings failed to deal with, either adequately or, in some cases at all. These factors are as follows:

i) Twhether by attending his GP or by attending A & E or otherwise. He did instruct solicitors and it was the solicitors who arranged for physiotherapy to be carried out and this should immediately have raised at least a suspicion in the mind of the judge.

ii) On 6 July 2016, the Claimant attended A & E in respect of the accident he had sustained involving the quad bike – initially rolling the quad bike on 2 July and then aggravating the injury when lifting the quad bike on 6 July. The Claimant then attended the walk-in centre at Stoke-on-Trent on 8 July and a very full note was made as set out in paragraph 6 above. However, at no stage is there any evidence that the Claimant informed either the A & E doctor (Dr Murphy) or the walk-in centre practitioner, of the injuries he had sustained on 2 June 2016 in the index accident, nor did he tell them that, over the previous four weeks, his symptoms from that accident had been getting steadily worse, as he asserted later in his witness statement (see paragraph 10 above). The failure of the Claimant to inform those medical practitioners of the index accident and the injuries and symptoms arising from it is inexplicable if the Claimant’s evidence about the injuries sustained in the index accident is correct or anywhere close to being correct. This is the first deafening silence.

iii) There is then the attendance upon Dr Shakir on 17 August 2016 and the failure of the Claimant to inform Dr Shakir of the quad bike accident and the injuries in that accident. He could not have forgotten about the quad bike accident: it was only a few weeks before. Furthermore, he must have been aware of the significance of the accident and its potential for contaminating any findings made by Dr Shakir about the injuries sustained in the index accident. No-one in the position of the Claimant could have failed to have appreciated the significance of the quad bike accident and the only reasonable inference to be drawn is that the Claimant deliberately failed to tell Dr Shakir about it in order to mislead Dr Shakir about the effects of the index accident. Indeed, this was effectively the finding of the learned judge at paragraph 19 (g) of the judgment (see paragraph 12 above). This was the second incidence of “deafening silence”.

iv) The position is then significantly aggravated by what can only have been positive lies told by the Claimant to Dr Shakir in two regards:

(a) On the basis of his evidence given at trial, namely that the effects of the injury to the neck were spent by three to four weeks after the index accident and the effects of the injury to the elbow was spent within four to five weeks of the accident, and on the basis that this evidence was true (and there is no reason to believe that it was not thought to be true by the Claimant), he must have deliberately misrepresented the fact that he was still feeling the effect of those injuries when he saw Dr Shakir with the result that Dr Shakir reported that the symptoms were now mild to moderate and intermittent.

(b) In addition, he is reported as having told Dr Shakir that his physiotherapy treatment was ongoing. However, as the Claimant must have known, he had been discharged from further physiotherapy by On Medical Limited on 20 July 2016, almost a month previously.

v) The Claimant then compounded the dishonesty towards Dr Shakir by lying about the longevity of the injuries in the Claim Form and his witness statements and, even worse, adopting Dr Shakir’s description of the injuries and prognosis of six month’s recovery when he knew that Dr Shakir had been misled by him into giving this prognosis. This is not capable of explanation by reference to the passage of time between the accident and the trial. When the Claimant saw Dr Shakir, he had ceased to have symptoms for a month or so, on the basis of the evidence he gave to the court, and when he signed the Statement of Truth in the Particulars of Claim and he signed his witness statements he knew he had not suffered symptoms from his injuries for a period of six months. This formed the basis of his claim for damages.

1. In my judgment, on the basis of the above, no judge could reasonably have failed to have come to the conclusion that the claim for damages as presented by the Claimant in this action was a fundamentally dishonest one, perpetrated by fundamentally dishonest accounts to the only medical expert and in the various court documents.

2. The appeal is accordingly allowed and the order dismissing the Claimant’s claim will be endorsed with a finding of fundamental dishonesty on the part of the Claimant in relation to the claim for damages.

COSTS

The trial judge had ordered the defendant to pay 60% of the claimant’s costs on the grounds that it had pursued an argument as to fundamental dishonesty that had not been successful and lengthened the time of the trial to two days. This was overturned by the Court of Appeal with the claimant being personally liable for the costs. Because the defendant did not succeed on the absence of an accident point the claimant was ordered to pay 70% of the defendant’s costs.

1. Given my decision on the first point, it is unnecessary for the purposes of this judgment to give views on the second point of appeal, namely whether the costs order made by the learned judge was wrong in any event. It is agreed by the parties that, in the event of my allowing the appeal on the first ground (as I have done), the costs order cannot stand and needs to be revisited. I invited submissions from counsel as to the appropriate order to be made. It remains the case, of course, that the Defendant failed to prove fundamental dishonesty in relation to the accident itself, that is whether it was a bogus claim because there had been no collision or there had been collusion between the parties, and Mr Smith conceded that it would be appropriate to reflect this in the order for costs. He submitted that if ground 1 succeeded, part 44.16 would be satisfied and the Claimant would lose his costs protection. He submitted that the order should be that the Claimant pay 70% of the Defendant’s costs.

2. Miss Parmar, perhaps somewhat boldly, submitted that the order made by the learned judge should prevail but with an adjustment of the percentage to be paid by the Defendant to the Claimant from 60% to 40%. This is a submission I have no hesitation in rejecting.

3. Given the finding of fundamental dishonesty, and the application of part 44.16, and given that the claim has failed, it is, in my judgment, appropriate to make an order that the Claimant pay the Defendant’s costs. The Defendant was justified in alleging fundamental dishonesty and this had the effect of taking the case out of the fast-track and into the multi-track. However, I acknowledge that a significant part of the evidence and court time was directed towards the question whether the accident was bogus and the parties had colluded, and some adjustment to the full order must be made to reflect the Defendant’s failure to prove fundamental honesty in that regard. Having considered the matter carefully, I have come to the conclusion that the order suggested by Mr Smith is the correct one and that the Claimant should pay 70% of the Defendant’s costs, to be assessed on the indemnity basis.