FUNDAMENTAL DISHONESTY, APPEALS AND RELIEF FROM SANCTIONS: CLAIMANT’S PROPOSED APPEAL COMES TO GRIEF

The judgment of Mr Justice Lavender in Kamara v Builder Depot Ltd [2020] EWHC 3046 (QB) contains a catalogue of material in relation to procedural issues and appeals.  However, here, I want to concentrate upon the issues relating to fundamental dishonesty.  The trial judge found that the claimant had been fundamentally dishonest.  In this judgment an application for relief from sanctions was refused, primarily because of the lack of merit in the proposed appeal, indeed the proposed appeal was considered to be totally without merit.

“There was overwhelming evidence that the claim for the cost of care was fundamentally dishonest and, as I have said, it would have been surprising if the judge had reached any other conclusion.”

THE CASE

The claimant brought an action for damages for personal injury. Liability was admitted. However the defendant alleged that the claimant had been fundamentally dishonest.  The trial judge found that the claimant had been dishonest and the claimant was ordered to pay the defendant’s costs.  There was a long procedural history relating to the appeal.

 

THE JUDGMENT ON THE ISSUE OF FUNDAMENTAL DISHONESTY

Mr Justice Lavender set out the narrative relating to the original trial.

    1. The trial commenced with an unsuccessful application by the Claimant for the trial to be adjourned to allow time for him to obtain a report from a clinical psychologist on his alleged learning disability. The Claimant gave evidence himself and called a psychiatrist, Dr Obuaya, and relied on a report from an orthopaedic expert. The defendant called four factual witnesses and a psychiatrist, Professor Maden, and also relied on five unchallenged witness statements.
    2. In relation to the claim for the cost of care, the Claimant’s case was that he was referred by his cousin, Peter Muana, to People’s Carers, a business run by one Sam Nyambeh, who arranged for carers to come to his home, where he paid them in cash. However, the Claimant did not call Mr Muana, Mr Nyambeh or any of the carers. He relied on a number of invoices purportedly issued by People’s Carers for the cost of the alleged care.
    3. The Claimant now contends that he was unable to provide a witness statement from, or to call, Mr Muana because Mr Muana could not be contacted by the Claimant’s solicitors. However, the Claimant also claims that Mr Muana did attend court on the second day of the trial, arriving during closing submissions. His presence was not drawn to the attention of the Judge.
    4. The Defendant’s case was that the Claimant had not received or paid for any care and that the invoices were forgeries. The Defendant relied on the following matters:
(1) The Claimant’s DWP records stated that he had been the carer for his uncle, with whom he lived, from 3 February 2012.
(2) The alleged need for post-accident care was not referred to in the Claimant’s disclosed medical records, nor in the histories which he provided to the three medical experts.
(3) The judge was invited to draw an adverse inference from the Claimant’s failure to call Mr Muana, Mr Nyambeh or any of the carers.
(4) The defendant relied on unchallenged witness statements to the effect that:
(i) People’s Carers did not exist.
(ii) The address for People’s Carers given in the invoices did not exist.
(iii) Two of the alleged carers named by the Claimant had been contacted and had confirmed that they did not provide care to the Claimant.
(5) The Claimant did not provide bank or other statements showing the source of the funds allegedly used to pay for his care.
(6) The invoices were contradictory, contained many spelling mistakes and, in one case, pre-dated the accident.
    1. At the end of the trial, instead of making oral closing submissions, the claimant was given a day in which to file written closing submissions. Mr Lixandru was disinstructed and the Claimant’s solicitors completed his closing submissions.
    2. In her judgment dated 1 May 2019 the judge found that the claim for the cost of care was totally fabricated. She drew adverse inferences from the Claimant’s failure to call Mr Muana and his alleged carers, saying as follows in paragraphs 80, 84, 85 and 86 of her judgment:
“80. … In his witness statement the claimant said that he was given the number for Peoples’ Carer by his cousin, Peter Muana. He said that Peter had visited him and suggested that he needed care. He was asked in cross-examination when he had last seen Peter. He provided various dates; October 2013, October 2014, October 2016 and October 2017. Two of those dates are inconsistent with the claimant’s witness statements when he referred to seeing Peter in February 2015. The 2013 and 2014 dates cannot be right as they pre-date the provision of care. I am satisfied that those dates were just given at a whim by the claimant. I find that has nothing to do with his slowness in respect of reading and writing.”
“84. Further, the claimant was put on notice right from the outset of this case that he needed to call Peter Muana and, for that matter, the other witnesses. I simply do not accept his varying accounts as to when he last saw Peter Muana. …”
“85. I reject the claimant’s assertion that he has not seen Peter Muana. If there is any truth in the contention that Peter Muana arranged the care provision and that it had been properly and legitimately provided, Peter Muana should have given evidence. I also find it very surprising that he was not so called because he was identified as a witness in the claimant’s Directions Questionnaire. That document is dated 5 March 2018. The claimant must have identified him as a witness at that stage and I simply reject the claimant’s varying accounts as to when he last saw Peter Muana. I draw an adverse inference in relation to the nonattendance of Peter Muana.
86. Further, given the seriousness of the allegations the claimant faced, he should also have called those who allegedly provided the care. Their absence, and there is a total silence as to why they have not been called, save for the information provided by the defendant, results in my drawing an adverse inference in respect of their non-attendance. If there was a shred of truth in the provision of the care, then all those witnesses should have been in court and should have given their evidence on oath, or affirmation.”
    1. As for the invoices, she said as follows in paragraphs 82 and 83 of her judgment:
“82. The claimant’s solicitors submitted that given the claimant’s literacy level he was not capable of producing the documents in support of the claim for care.
83. Literacy is but one part of the problem for the claimant. I accept that he has only basic literacy skills, but in my view rather than undermining the assertion that the documents were, at least in part, produced by the claimant, his attendant limitations support that assertion. The letters and the simple invoices are littered with mistakes such as, ‘Peoples’ Carer’ spelt incorrectly, ‘Private’ spelt PIVATE, ‘Liability’ spelt LAIBILTY and, ‘Apologies’ instead of, ‘Apologise’; just the sort of mistakes I find the claimant would make.”
    1. Earlier in her judgment, the judge had found that the Claimant’s literacy was limited, but that he was capable of reading or writing simple documents. In reaching this finding, she attached most weight to the evidence of one of the Defendant’s witnesses, Mr Allum, who said that he had seen the Claimant complete basic forms, but he knew that the Claimant was slow at writing. The judge found Mr Allum to be a clear, cogent and fair witness.
    2. The judge found that the Claimant was not an impressive witness. He was histrionic, aggressive and combative. The judge found that this was not because the Claimant was stressed or suffering from any mental illness, as he contended, but that it was done for effect. That was the opinion of Professor Maden, who was in court throughout the Claimant’s evidence. The judge rejected the Claimant’s evidence that his GP’s note certifying him fit to work on 29 July 2014 was fabricated and was clearly unimpressed by the fact that the Claimant made and persisted in this serious, but unsustainable allegation.
    3. Then she said as follows in paragraphs 87 and 88 of her judgment:
“87. The claimant’s difficulties in relation to the care plan are compounded by his own oral evidence. He told me he paid the care claim weekly in cash, but the invoices show the liability of £3,250 being due at the start of the care in September 2014 and then reducing on a weekly basis. It was never said that the claimant knew how much care he needed before it had even commenced. Further there is an invoice dated 18 February 2014, which predates the accident, which refers to “payment been overdue”. It also states that the care was provided from 18 September 2014 to 18 February 2015, whilst a letter dated 5 April 2017 refers to the care being provided from 9 September 2014 to 24 March 2015, which accords with the claimant’s schedule of loss.
88. I find that these invoices were simply manufactured for dishonest gain. Whether the claimant did it alone or assisted, I know not. I found his explanation that Peter had “sorted it out” unbelievable. My view is strengthened by the claimant’s singular failure to tell any of his treating consultants of the need for care and also my findings that this was but a minor incident. On my findings he had long recovered by the time the care was allegedly provided. I find that he did not need care at any stage, even for the three weeks that I have allowed for his pain and suffering. It is also beyond belief that a man earning £11 an hour who was by then off work would pay out £25 an hour for basic care services. Further, his bank statements did not support the claimant taking out cash to pay for the care each week and when the claimant appreciated that he changed his evidence. He then said he had borrowed the money from family and friends and he had repaid them out of his savings. As Mr Hogg asserted in closing, if that had been so, why not simply pay the carers out of his savings in the first place? The reality is that I find the claimant has paid out nothing. I find that the claim for care is totally fabricated and despite his assertions to the contrary and the attempt to justify it, the claimant did not receive or pay for any care.”
    1. The judge set out section 57 of the Criminal Justice and Courts Act 2015 and quoted the discussion of that section in paragraphs 62 to 65 of the judgment of Robin Knowles J in LOGOC v Sinfield [2018] EWHC 51 (QB). She found that the Claimant’s claim was fundamentally dishonest, that the Claimant’s account of the incident and his involvement in it was totally exaggerated and untrue and that he had deliberately exaggerated the extent of his back symptoms. Then she said as follows in paragraphs 96 to 98 of her judgment:
“96. However, the claim can be dismissed in any event on the basis of the claim for care. The reality is that the claimant’s claim for future loss of earnings was never provable. His expert evidence did not support it. Even on the claimant’s best case he had a maximum of two years’ pain and suffering and one year’s loss of earnings with some psychological damage and that that meant a claim for £3,250 care was substantial. However, on my actual findings, the claim for £3,250 dwarfs the actual award. The obvious reason for the fabricated invoices and the claim is financial gain.
97. I find that the dishonest claim for care went to ‘the root of or the heart of the claim’ not only in terms of value but also by its submission the claimant was asserting that he was so disabled by the accident he was required to obtain care from September 2014 to March 2015.
98. No evidence has been adduced that the claimant would suffer substantial injustice if the claim were dismissed. He will clearly lose the valid part of his claim. However, as was said in LOGOC v Sinfield, at paragraph 89 something more is required than the mere loss damages. The primary claim must be dismissed.”
  1. The judge ordered the Claimant to pay the Defendant’s costs and to pay £50,000 on account of costs by 15 May 2019.

 

THE CLAIMANT’S APPLICATION FOR PERMISSION TO APPEAL

The claimant’s appeal had a prolonged history.  Mr Justice Lavender was considering an application that the appeal be reinstated because the claimant/appellant was in breach of a court order.  However the merits of the appeal were held to be a significant factor.

(3)(h) The Hearing of the Present Application and Subsequent Developments
    1. The hearing of the Claimant’s application issued on 4 May 2020 took place before me on 12 June 2020. The consideration of the application was significantly disadvantaged by reason of the fact that the Claimant’s solicitors had not prepared a hearing bundle. Instead, I received copies of various documents by various emails. However, I did not receive, for example, a copy of the judgment of HHJ Baucher or copies of the fresh evidence on which the Claimant seeks to rely. Nor did I have before me copies of all of the various applications made by the Claimant.
    2. Nevertheless, I invited, and heard, submissions at the hearing on the merits of the proposed appeal, on the basis that the prospects of success of the appeal were relevant to the question whether its strike-out should be revoked. I was greatly assisted by the submissions of counsel. In particular, I wish to commend Mr Smith, who had been instructed at very short notice to represent the Claimant. He was a pupil and this was his first hearing as an advocate. In difficult circumstances, he did a very good job
    3. I did not feel able to make a decision at the hearing. Instead, I directed that the Claimant file an electronic bundle, containing the judgment appealed against, the various applications and the fresh evidence sought to be relied on. I also directed that the parties should have the opportunity to make further written submissions. The Defendant filed written submissions which addressed, in particular, the merits of the appeal. The Claimant chose not to file any written submissions.
    4. On considering the judgment and the Defendant’s written submissions, it seemed to me that I might well be in a position to decide the question whether permission to appeal ought to be granted (were I to grant relief from sanction). I communicated this to the parties because I wanted to give them (and, in particular, the Claimant, since the Defendant had addressed the merits at some length in its written submissions) an opportunity to make any further submissions on the merits of the appeal before doing so and, in the Claimant’s case, an opportunity to explain why he contended (if he did so contend) that it would not be appropriate to deal with permission at this stage. Both parties made further written submissions, although the Claimant’s submissions focused more on procedural matters than on the merits of the appeal. The Claimant did not voice any objection to my deciding whether permission to appeal should be granted.
(4) Relief from Sanction
    1. The Claimant’s application of 4 May 2020 was, in effect, an application for relief from the sanction imposed when the application for permission to appeal was struck out on 17 March 2020 by operation of Saini J’s order of 3 March 2020. Submissions were made on the familiar principles set out in Denton v TH White Ltd [2014] 1 WLR 3926. However, I do not need to dwell on those matters, because it is clear to me that the proposed appeal has no prospect of success, and so rescinding the strike-out would achieve no useful purpose.
    2. I will say, however, that, if I had concluded that the appeal had any prospect of success, then I might have rescinded the strike-out. There were many failings in the case on the part of the Claimant’s solicitors, as I have set out at some length, and it was only with considerable hesitation that Griffiths J decided to extend time on 24 January 2020, but thereafter the effect of his and Saini J’s orders was to place the Claimant in an impossible position. On the one hand, the Claimant was ordered to file an appeal bundle containing the transcript of the trial but, on the other hand, Griffiths J did not make an order on 31 January 2020 that that transcript be provided at public expense, his order of 27 February 2020 to that effect was not sent to the Claimant’s solicitors until 11 March 2020 and the request for that transcript had not been acted on by the County Court as late as May 2020.
    3. There were further failings by the Claimant’s solicitors during this period.
(1) They did not notice that Griffiths J’s order of 31 January 2020 only extended to the transcript of the judgment, which led to a few weeks’ delay. Prompter action on their part might have resulted in the transcript of the trial being obtained before 17 March 2020, but one has to bear in mind that they were responding to a mistake made by the court in dealing with a request which had been with the court for 4 months.
(2) They did not explain the position adequately in the application made on 27 February 2020, which led to Saini J making his order on a mistaken basis.
(3) They did not make the present application before the expiry of the deadline on 17 March 2020, although the delay in that respect was perhaps the responsibility of the pandemic.
    1. But when the guillotine came down on 17 March 2020, it could be said that the Claimant was being penalised for not doing something which he could not do.
(5) The Merits of the Proposed Appeal
    1. The proposed grounds of appeal are set out in paragraphs 12 to 20 and 22 to 24 of the document headed “Grounds of Appeal”. I will refer to them as “ground 12” etc. Paragraph 21 refers to the possibility an amendment to the grounds after the transcript of the judgment had been obtained, but no such amendment has been proposed.
    2. Although Griffiths J was persuaded that a transcript of the trial was required, he did not have the benefit of sight of the careful and detailed judgment. Having read the judgment and the grounds of appeal, I do not consider that a transcript of the trial is needed in order to assess whether the grounds of appeal are arguable.
    3. Grounds 15, 16 and 17 concern the judge’s finding on contributory negligence. Grounds 18 and 19 concern the judge’s findings on quantum, I need not consider these grounds, since they could serve no useful purpose unless the Claimant was able to overturn the judge’s finding that the claim for the cost of care was fundamentally dishonest.
    4. Ground 14 is that the judge was wrong to refuse an adjournment of the trial to allow the Claimant an opportunity to obtain evidence of the kind now contained in Ms Meredith’s report. However, that report does not assist the Claimant’s case. It states that he has a learning disability. That may explain why his literacy is poor, but the judge found that his literacy was limited. It is suggested that the report would have assisted the judge in her assessment of the Claimant’s credibility, but there is no basis for that. The report does not contain any opinion by Ms Meredith on the Claimant’s demeanour or his conduct in court. In any event, the Claimant did call a psychiatrist at trial. The report does not add anything to what the psychiatrist could say on this issue.
    5. Three other grounds concern the issue about the Claimant’s demeanour. Ground 13 asserts that the judge failed to give any weight to the findings of the First-tier Tribunal on an issue relating to the Claimant’s mental health condition and demeanour. Ground 20 asserts that the judge was wrong to prefer the evidence of Professor Maden, because he was evidently biased. Ground 23 asserts that the judge failed to take account of the Claimant’s mental state, leading to the erroneous finding that he was not a credible witness.
    6. There were many reasons for finding that the Claimant was not a credible witness, including the inconsistencies in his evidence referred to in paragraphs 80 and 87 of the judgment. The judge considered in paragraph 38 of her judgment the Claimant’s submission that his demeanour was the product of stress and mental illness. She was entitled to reject that submission. The only basis for the allegation that Professor Maden was biased was a seemingly inappropriate phrase in his report. Any allegation of bias could and should have been raised at trial rather than being reserved for appeal.
    7. Ground 19 challenges the judge’s finding as to the Claimant’s ability to read and write. Specifically, it is said that she did not provide an adequate explanation why she did not accept the evidence of the Claimant’s GP on this subject. But the judge gave a clear and adequate explanation of the reasons for her finding: she accepted the evidence of Mr Allum, who had seen the Claimant complete basic forms. In any event, the judge accepted that the Claimant might have had help in fabricating the invoices, so the argument that his literacy was so limited that he could not have fabricated them alone does not help the Claimant.
    8. By grounds 12.4 to 12.14 it is asserted that the judge could not reasonably have found that the Claimant created the invoices, by ground 12.3 it is asserted that the judge placed undue weight on the inconsistencies in the Claimant’s evidence and by ground 12.15 it is asserted that the fact that People’s Carers and Mr Nyambeh could not be found was no indication that the Claimant did not receive care services. However, there was ample evidence to support the judge’s findings that the Claimant did not receive care and that he fabricated the invoices. The weight to be given to individual parts of the evidence was a matter for the judge. In all the circumstances, the Claimant’s failure to call any witness involved in the provision of the alleged care and his reliance on obviously bogus documents meant that it would have been very surprising if any judge had accepted that he received the alleged care.
    9. By ground 12.14 it is asserted that:
“It was necessary for the Judge to find that the Claimant himself created the invoices in order to find him to be fundamentally dishonest …”
    1. That submission makes no sense. If the Claimant had got someone else to fabricate the invoices for him, that would not have prevented his claim for the amount of those invoices from being fundamentally dishonest. In any event, the judge did find that the Claimant manufactured the invoices.
    2. By grounds 12.1 and 12.2, complaint is made that the judge failed to determine whether the Claimant knew the invoices to be untrue and by the second ground 12.5 (which follows ground 12.14) complaint is made that the judge only implied that the Claimant created the invoices, but did not make an express finding to that effect. In fact, the judge said as follows in paragraph 88 of her judgment:
“I find that these invoices were simply manufactured for dishonest gain. Whether the claimant did it alone or assisted, I know not.”
    1. That was an express finding that the Claimant dishonestly manufactured the invoices, either alone or with assistance.
    2. The statement from Mr Muana is not admissible on appeal, as it does not satisfy the first limb of the test in Ladd v Marshall [1954] 1 WLR 1489. The question whether the Claimant could have called Mr Muana at trial was explored at trial and the judge, in drawing an adverse inference from the failure to call Mr Muana, had clearly concluded that the Claimant could have called Mr Muana if he had wanted to. The statement does not contradict that. It says nothing about why Mr Muana did not give evidence at trial. It contains no statement by Mr Muana that he was not in contact with the Claimant or his solicitors. Indeed, in asserting that he fetched the invoices, Mr Muana was saying that he was in contact with the Claimant and that he assisted the Claimant in preparing his claim.
    3. Finally, ground 24 asserts that the judge was wrong to find that the Claimant would not suffer substantial injustice if his claim was dismissed. Two reasons are given for this. The first amounts to no more than a submission that the Claimant was not dishonest. The second is an allegation that the Defendant’s case at trial was inconsistent with the Defendant’s case in proceedings before the employment tribunal. That is a matter which could have been explored at trial, but it is irrelevant to the question whether the Claimant, having advanced a fundamentally dishonest claim, should not suffer the usual consequences of so doing.
    4. For all of those reasons, if I were considering the application for permission to appeal, I would refuse permission to appeal and, indeed, would consider certifying that the application was totally without merit. There was overwhelming evidence that the claim for the cost of care was fundamentally dishonest and, as I have said, it would have been surprising if the judge had reached any other conclusion. At best, the grounds of appeal seek to reargue points which the judge was entitled to decide as she did, but they do not identify any arguable error on the part of the judge.
(6) Conclusion
  1. For the reasons given in this judgment, I dismiss the application issued on 4 May 2020. The application for permission to appeal remains struck out.