A “WHOLLY UNRELIABLE” WITNESS IS NOT NECESSARILY A DISHONEST ONE: ALLEGATIONS OF FUNDMENTAL DISHONESTY NOT ACCEPTED BY JUDGE

In Brint v Barking, Havering and Redbridge University Hospitals NHS Trust [2021] EWHC 290 (QB) HHJ Platts (sitting as a High Court Judge) rejected the defendant’s case that a witness who was “wholly unreliable” was also fundamentally dishonest.

 

“Failing to give a satisfactory account is very different from giving a false account.”

 

THE CASE

The judge dismissed the claimant’s claim for clinical negligence, stating “ I found her evidence on the whole to be unconvincing and unreliable.”  The day before the trial started the defendant indicated that it intended to make assertions of fundamental dishonesty.

THE JUDGMENT ON FUNDAMENTAL DISHONESTY

The judge did not accept the defendant’s case that the findings meant that the claimant was dishonest.
Fundamental Dishonesty
    1. In view of my finding on liability, the issue of fundamental dishonesty does not arise in the context of section 57 of the Criminal Justice and Courts Act 2015. However, I deal with it because it is an important and serious allegation raised against the claimant and in the event that the defendant seeks to rely on CPR Part 44.16(1) on the issue of costs.
    1. The defendant first informed the claimant that it intended to advance a positive case that she had been fundamentally dishonest on the eve of trial. The basis for the allegation became clear during cross examination and is repeated in closing submissions. The defendant relies on the claimant’s “incredible or unreliable” version of the events at the time of the scan; her “failure to give a satisfactory account of her benefits claim” and / or her “failure to give a satisfactory account of her long-standing multiple prior health conditions in her witness statement and to the experts instructed in her case.” I have already found that her evidence about the events at the time of the scan and about her prior health condition was unreliable and that her evidence about the benefits claim was unsatisfactory.
    1. I am reminded of the test of dishonesty as set out by the Supreme Court in Ivey v Genting Casinos Limited [2017] UKSC 67 [Lord Hughes, para 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. Having considered the totality of the evidence, including her evidence given over one and a half days in cross examination, I am satisfied that, despite the overall unreliability of her evidence, she genuinely believes that the case she advances is true and I am not persuaded that she has been dishonest. The following factors are in my judgment relevant:
a) The allegation first came extremely late in the litigation. It is not a case when the spectre of dishonesty arose during the live evidence. The defendant knew the claimant’s account of the scan and her view of her prior condition when her witness statement was served. It knew that the claimant had made a claim for benefits claim when it was disclosed to Mrs Savage in 2019. The lateness of the positive averment, in my judgment, suggests that it was not considered to be an appropriate allegation to be made until the start of trial. I have not seen anything which justifies the change of approach.
b) Until Dr Carnwath raised the possibility of factitious disorder, none of the experts in the case and none of the claimant’s treating clinicians had accused her of being dishonest in her presentation. I reject Dr Carnwath’s opinion for the reasons I have given.
c) I reject any suggestion that the claimant has been motivated by the prospect of financial gain. It has not been suggested by any of the expert witnesses and, indeed, Dr Carnwath agreed in evidence that she did not appear to be motivated by money or financial reward. That accords with my impression of her as a witness.
d) The claimant made prompt and consistent complaints about her treatment on the 29th December 2013. It is highly unlikely that she invented those complaints within such a short period of time and remained so consistent about them thereafter if they were pure invention. Her account has striking similarity to the events at the RNOH in 2010 and I have commented that I find it probable that she has somehow conflated the two events in her own mind. I am sure she genuinely believes that what she says happened in fact happened.
e) I have dealt with her pre-2013 condition. She has been unreliable in her evidence but for the reasons I have given I accept that her description of herself as being “fit healthy and active” accords with her perception of the effect of the conditions on her within the limitations of her health.
f) Her failure to be fully frank from the outset about her receipt of Disability Living Allowance is of more concern. However, again, I accept her evidence that she thought it irrelevant because it related to her back problem about which she was not making a direct claim. Further, it is relevant that she has never actively denied receiving the benefit and indeed volunteered that she had received it to the defendant’s care expert.
g) It is perhaps telling that the highest the defendant puts the allegation in closing is her “failure to give a satisfactory account” of her benefits claim and her health conditions. Failing to give a satisfactory account is very different from giving a false account.
h) In my judgment her evidence has to be viewed against the background of her psychological profile which has been discussed at length by the psychiatric experts.
i) Finally, and importantly, my impression of her as a witness whom I heard and observed (albeit over video-link) during extensive cross examination when all these matters were put to her was that she was not a dishonest person. She has a genuine and significant disability which she firmly believes has been caused by the events of the 29th December 2013.
  1. This has been an extremely complex case. However, when I stand back and look at the totality of the evidence I am far from persuaded that the claimant has deliberately made up events that did not occur or that she has deliberately told lies about her condition in order to advance her claim. Applying the two-stage test, I am satisfied that the claimant genuinely believed in the truth of the evidence that she gave and that, applying the standards of ordinary decent people I find as a fact that although her evidence was wholly unreliable in the sense that I do not accept it, she has not been dishonest. I therefore reject the allegation of fundamental dishonesty.