EXAGGERATION OF INJURIES IS NOT NECESSARILY FUNDAMENTAL DISHONESTY: HIGH COURT DECISION

In Elgamal v Westminster City Council [2021] EWHC 2510 (QB) Mr Justice Jacobs rejected an appeal from a defendant that argued the trial judge should have found a claimant to be fundamentally dishonest.

“The Defendant’s argument, based on the word “potentially”, loses sight of the need for the dishonesty to go the root of the claim. It invites enquiry into what claims might have been advanced, even if they were not actually advanced. It is difficult to see how a claim which was not actually advanced can be said to have been fundamentally dishonest. Furthermore, it would lead in many if not most cases to the surprising conclusion that any dishonesty would qualify as fundamental, because of its potential to result in different or larger claims, even if such claims were not in fact made.”

THE CASE

The claimant brought an action for damages for personal injury after being injured in a gym.  Liability was agreed with a 35% deduction for contributory negligence.

 

THE DEFENDANT’S ALLEGATION OF FUNDAMENTAL DISHONESTY

In some of the reports the claimant manifested a limp.  The defendant stated that the claimant had exaggerated the extent of his injuries and was, therefore, fundamentally dishonest.  T Mr Justice Jacobs observed.

“The Defendant’s case on fundamental dishonesty did not, however, focus on this aspect of the claim actually made. This was for good reason. The case of fundamental dishonesty concerns the alleged exaggeration of the Claimant’s symptoms, including the manifestation of a limp, to Mr Unwin and others. However, there is nothing which suggests that this exaggeration, even if it existed, had an impact on the claim in respect of past losses that the Claimant was putting forward.”

THE TRIAL JUDGE’S FINDINGS: THERE WAS EXAGGERATION BUT THERE WAS NOT FUNDAMENTAL DISHONESTY

 

The trial judge found that the claimant believed he was more injured than he in fact was.

    1. Having dealt with the heads of loss, the judge addressed the Defendant’s case that “the claimant’s exaggeration led inexorably to a finding of fundamental dishonesty and the dismissal of the claim”. Having set out section 57 of the Act, and passages from various authorities, the judge said that the assessment of dishonesty is on a case-by-case basis. His conclusions were expressed as follows:
“What do I make of this claim?
The claimant clearly in his evidence believes that he is disabled to a greater extent than I have found. He gave clear evidence that he was making adjustments to get into the car that were not visible to me. From his perspective he was not lying.
However objectively he was exaggerating and so as a fact was lying.
It is not just a case of looking at what claimant claims v what he’s recovered. The reality of why he’s not recovered the major head of claim, future loss of earnings is the failure to produce the evidence to establish a difference between what a stuntman earns and sedentary employment. His lies played no part in this aspect of the case.
Although I have not accepted the level of his ongoing disability and therefore found there was an exaggeration; there was an exaggeration as to the level of the ongoing disability arising from a very serious base injury.
Those findings were not fundamental to this case. They certainly did not result in a reduction in general damages to the level the defendant submitted or indeed anywhere near that level, nor did they result in a loss of a Smith v Manchester award.
The claimant was thus not fundamentally dishonest and my awards stand.”

THE FINDINGS ON APPEAL

The Defendant’s arguments that exaggeration automatically led to a finding of fundamental dishonesty were rejected on appeal. Mr Justice Jacobs considered the defendant’s argument.

    1. I do not accept the full width of this approach. The relevant statutory word is “fundamental”. That is the only statutory word, and paragraphs [62] and [63] in Locog should not be read as though they are a substitute for it. Furthermore, as Julian Knowles J explained in paragraph [63], he was seeking to capture the same idea as the expressions “going to the root” or “going to the heart” of the claim. In my view, those expressions do sufficiently capture the meaning of “fundamental” in the present context, and the difference between conduct which is (as Martin Spencer J said in paragraph [20] of Pegg) “merely” dishonest and fundamentally dishonest.
    1. The Defendant’s argument, based on the word “potentially”, loses sight of the need for the dishonesty to go the root of the claim. It invites enquiry into what claims might have been advanced, even if they were not actually advanced. It is difficult to see how a claim which was not actually advanced can be said to have been fundamentally dishonest. Furthermore, it would lead in many if not most cases to the surprising conclusion that any dishonesty would qualify as fundamental, because of its potential to result in different or larger claims, even if such claims were not in fact made. I do not consider that the Locog case is to the contrary effect. Julian Knowles J was considering a dishonest claim for gardening expenses that was actually made. He was not considering dishonesty in the context of a claim that was not actually made, but which might theoretically have been made.
    1. Ultimately, it seems to me that the question of whether the relevant dishonesty was sufficiently fundamental should be, and is, really a straightforward “jury” question: as HHJ Harris QC said, it is a question of fact and degree in each case as to whether the dishonesty went to the heart of the claim. That must involve considering the dishonesty relied upon, and the nature of the claim – both on liability and quantum – which was actually being advanced.
    1. I accept that, in this context, the court is concerned with the potential impact of the dishonesty on the claim actually made. In the present case, where the dishonesty is alleged to have resulted in an inflated claim for a genuine injury arising from a genuine accident, it is necessary to consider the extent to which the alleged dishonesty resulted in an inflated claim; ie the extent to which the dishonesty, if not exposed, would potentially have resulted in a higher quantum of recovery in respect of the claims made. This in turn involves consideration of the various losses claimed by the Claimant, and the potential impact of the alleged dishonesty on the award for those losses.
    1. In some cases, it will be obvious that the dishonesty had a potential impact on the amount that might be awarded for a particular head of loss. For example, a personal injury claim will invariably involve a claim for PSLA, and a dishonest description of symptoms and suffering will inevitably have a potential impact on the PSLA. The significance of that potential impact is a matter for consideration in the context of whether the dishonesty went to the root of the claim. Conversely, it may be clear that the alleged dishonesty has no material impact on a particular head of loss. In the present case, for example, the Claimant’s inability to work as a stunt man was the basis of the major claims for lost earnings, and the dishonesty had no material impact on the claim in that regard.
    1. In other cases, there may be room for dispute as to whether or not there was any potential impact. In the argument on this appeal, the claim for the automatic car assumed, in the Defendant’s argument, a greater significance than in the proceedings below, when it had not been mentioned in the closing argument on behalf of the Defendant. There was a debate on appeal as to whether the alleged dishonesty had any actual or potential impact on that claim at all. In my view, where there is room for dispute as to the impact of alleged dishonesty on a particular head of claim, then the Defendant – who bears the burden of proving fundamental dishonesty – will need to lay the necessary groundwork for its argument; for example, by eliciting from experts that their opinion on a particular head of loss would be different if a claimant’s case as to the extent of injury were accepted or rejected.
Approach to the judge’s findings
    1. In the present case, the judge found that the claimant was not fundamentally dishonest, and I am being asked to overturn that finding. I will need to address the question of whether the basis of the judge’s decision was (i) that the Claimant was not dishonest, or alternatively (ii) that although he was dishonest, the dishonesty was not fundamental. Either way, the appeal before me is by way of review, and I must therefore conclude that the judge’s decision was wrong: see Locog paragraph [69].
    1. Paragraphs [70] and [71] of Locog set out the applicable principles concerning the approach to be taken to a judge’s findings of fact. These include the principle that:
“In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere”
    1. The authorities show, however, that there is a distinction between the finding of a specific fact and the finding of fact which is really an inference from facts specifically found. In the latter case, 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 whether the finding could be founded on their credibility or bearing: see the authorities discussed by Martin Spencer J in Pegg at paragraph [23] and by Stacey J in Michael.
F: The parties’ arguments as to fundamental dishonesty
    1. In its grounds of appeal on the principal issue, the Defendant relied upon the following matters in relation to the judge’s judgment:
“1. Failing to properly apply the test as to fundamentally dishonesty;
2. Failing to have proper regard to the test as to fundamental dishonesty and the consequences of a finding of fundamental dishonesty;
3. Failing to conclude that C was fundamentally dishonest when due to his findings of fact HHJM should have concluded this;
4. Finding that C’s lies/exaggeration were not fundamental to this case. In doing so, HHJM failed to consider what would have been the consequences to the conclusions of the experts and his decision on quantum had it not been established C was exaggerating his injuries;
5. Finding that C from his own perspective was not lying given the findings of facts which were made.”
    1. These points were developed by Mr Lyons in his written and oral submissions. In summary, he submitted that the judge did find that the Claimant had lied as to the true level of his disability. There was dishonest exaggeration, and this went to the heart of the claim. He had presented himself in a dishonest way to the doctors, in particular to Mr Unwin. Whilst there was a serious base injury in this case, it did not follow that there could not be fundamental dishonesty simply because of its seriousness. Mr Lyons submitted that the seriousness of the injury would be a relevant factor in deciding whether this was a case where there was “substantial injustice” so as to allow a dishonest claim to stand pursuant to section 57 (2) of the Act. However, s 57 (2) was not relied upon by the judge, and there was no respondent’s notice seeking to uphold the decision on other grounds. Accordingly, since this is not a case of substantial injustice, the seriousness of the injury was either irrelevant or at least not particularly relevant to the question of fundamental dishonesty. The question of whether the dishonesty was fundamental depended upon the nature and manner of the lies, rather than the nature of the injury.
    1. Here, the dishonest presentation related to the existence of a limp, and also to the other difficulties which the Claimant alleged but which were found by the judge to have been exaggerated. The exaggerations found by the judge could not have been anything other than a conscious and deliberate exaggeration. In so far as the judge did not make a finding to that effect, then this court should not hesitate so to find, because there was no other logical conclusion.
    1. Mr. Lyons submitted that the extent and manner of the dishonesty was stark. If there had been no surveillance footage, the judge would no doubt have accepted the Claimant’s account of his injuries. This would have resulted in the judge looking at the PSLA claim in a different way. It would have resulted in a significantly greater award for that element of the claim, and Mr Lyons would not have argued for an award as low as £ 12,000. He also submitted that the care and attendance claim would have been much larger, but for the surveillance footage, whereas in fact the award was only £ 773. He also relied upon the claim made, and then abandoned, for the automatic car.
    1. Overall, he submitted that the claim depended as to a substantial or important part of itself upon dishonesty. The judge was wrong to say that the Claimant’s level of exaggeration was not fundamental to the case. The judge’s analysis of fundamental dishonesty was inadequate. The judge failed to consider and reflect upon the case that the Claimant would have likely advanced in the absence of the surveillance footage.
    1. On behalf of the Claimant, Mr. Deegan ultimately submitted that the judge had not found the Claimant to be dishonest. The judge had said that the Claimant, from his perspective, had not been lying. That was not a finding of dishonesty. The court was not now in a position to make, and should not make a serious finding of dishonesty which the judge, who heard the Claimant over the best part of 2 days, had not made.
    1. Mr Deegan’s principal submission, however, was that any dishonesty was not fundamental. He said this required consideration of how, if at all, the dishonesty impacted on the claim that was actually made. He said that there had been no real attempt, in the submissions made to the judge, to address the question of how the alleged dishonesty impacted on the claim. This attempt had only been made on the appeal, but it did not establish a case of fundamental dishonesty. Fundamental dishonesty needed to go to the heart of the claim actually presented. An exaggeration of injury which did not significantly impact on the sums claimed would not be fundamental dishonesty. Fundamental dishonesty must involve considering the claim that was actually made, and whether (using the adjectives or adverbs in paragraph 62 of Locog) the dishonesty substantially affected the presentation of the Claimants case in a way which potentially adversely affected the defendant in a significant way.
    1. Mr. Deegan’s submissions paid close attention to the claims that were actually advanced. He said that the limping and other exaggerations were not fundamental to the claim, given the context of the very serious injury which the Claimant had indeed suffered. In relation to some aspects of the claim, the most significant in financial terms, the exaggerations were irrelevant. Thus, the loss of earnings claim was based upon the Claimant’s inability to work as a stuntman. The evidence clearly showed that the Claimant could not do so, as a result of the injury which was established. In relation to other aspects of the claim, the exaggerations found by the judge, including the limp, would not have made any real difference even if potentially relevant. Thus, in relation to the PSLA claim, the judge had awarded £ 60,000: the limp would not make much of a difference if any. The judge, notwithstanding his findings as to exaggeration, was nevertheless “largely with us” in relation to the PSLA claim that was advanced; certainly by way of comparison with the £ 12,000 for which the Defendant was arguing.
    1. Similarly, the exaggerations made no difference to the Smith v Manchester award. It was uncommon to award more than 3 years loss of earnings in that context. That was the figure which had been sought at trial. It was not specifically pleaded in the schedules of loss. The judge had awarded the full amount claimed, notwithstanding his findings as to exaggeration.
    1. In relation to other aspects of the case on which the Defendant now focused, Mr. Deegan submitted that there was no fundamental dishonesty. For example, the claim in respect of the automatic car was not related to the exaggeration. It was put on the basis of the weakness in the Claimant’s knee. The judge had accepted that there was a weakness, but the experts had agreed that the Claimant could nevertheless drive a manual car. There was also no fundamental dishonesty in relation to the care aspects of the claim.
    1. Looking at the matter overall, Mr Deegan submitted there had been no attempt in the loss schedules to exaggerate the Claimant’s losses as a result of any dishonesty. It was difficult to see how the Claimant in any way sought to persuade the judge, by reference to particular items of damage, that the claim was exaggerated as a result of the exaggeration of the injury.
G: Discussion
    1. The first issue which arises is whether the Claimant was dishonest. If not, then no question arises as to whether the Claimant was fundamentally dishonest.
    1. The judge’s finding in relation to this question was in my view contained in the following passage at the conclusion of his judgment:
“What do I make of this claim?
The claimant clearly in his evidence believes that he is disabled to a greater extent than I have found. He gave clear evidence that he was making adjustments to get into the car that were not visible to me. From his perspective he was not lying.
However objectively he was exaggerating and so as a fact was lying.”
    1. Earlier in his judgment, the judge had described in some detail, and with clarity, the ways in which he had found that the Claimant was exaggerating: “Pulling all those threads together, I find that he is exaggerating the ongoing effects of his injury”. These exaggerations included, for example, walking at a fast pace without demonstrating an obvious limp.
    1. As the passage in paragraph [74] of Ivey shows, a finding of dishonesty depends initially upon a finding as to the state of an individual’s knowledge or belief as to the facts. This is a subjective question. If an individual genuinely believes that the facts are as he represents them to be, then there can be no question of dishonesty. That is so even if, on an objective view of the facts, they are not in accordance with the individual’s subjective belief.
    1. In the present case, the judge held that the Claimant clearly in his evidence believed that he was disabled to a greater extent than the judge had found. The judge went on to say that, from the claimant’s perspective, he was not lying. In my view, these findings negate a necessary requirement for a finding of dishonesty, since they can only be read as a finding that the Claimant had a genuine belief in the facts which he represented. That finding must relate both to the Claimant’s evidence in the witness box at trial, and statements to similar effect to doctors at an earlier stage. The judge did not find that the Claimant had (subjectively) lied to him in his evidence, or that he had (subjectively) lied in the statements that he made to doctors.
    1. In my view, this is an area where, in accordance with the authorities, I should be reluctant to interfere with the conclusion of the judge. He heard the Claimant give evidence for a lengthy period. I did not. His findings are as to a specific fact (was the Claimant subjectively lying), rather than as to an inference from facts specifically found. The authorities also establish that where a party has been acquitted of fraud, the decision in his favour should not be displaced except on the clearest grounds: see the cases cited in Locog para [71]. All of these matters lead to the conclusion that I should not overturn the judge’s finding, and should not find dishonesty in circumstances where the judge did not do so.
    1. However, Mr Lyons submitted that this was one of the rare cases where an appellate court should overturn that finding, if I were to take the view (as I do) that the judge did not find the Claimant to have been dishonest. He said that this aspect of the judge’s reasoning did not sit happily with his earlier findings of exaggeration. The judge had found objective exaggeration, and therefore the court should be willing to conclude that there was subjective exaggeration as well. The Claimant must have known, for example, that he was putting on a deliberate limp when he met the medical experts. He said that this must have been a conscious exaggeration, and that it was “absurd” to say otherwise.
    1. I was not persuaded by this submission. Judges frequently hear from witnesses who have persuaded themselves as to the existence of certain facts, but where the judge takes a very different view. Such witnesses are not, or at least not necessarily, untruthful or dishonest.
    1. In the present case, the Claimant had given a detailed explanation, in his second witness statement, as to why the surveillance evidence might seem to be at odds with some of the medical evidence. The essence of that explanation, as Mr Deegan argued to the judge, was that the claimant was trying to adapt to his disability and live life as normally as possible. Mr Deegan had submitted to the judge that it was also appropriate to bear in mind the Claimant’s own subjective perception of his disability, bearing in mind that “we are dealing with an individual here who was extremely athletic before the accident occurred, capable of undertaking extreme acrobatic manoeuvres, and therefore to him, not being able to leap up the stairs in the tube station, but having to walk up them in a more …sedentary fashion, is struggling, that is having difficulty”.
    1. Accordingly, in my view there was evidence and argument before the judge which meant that a conclusion that the Claimant was subjectively dishonest was not inevitable, and that the contrary conclusion was not absurd. Overall, I do not consider it appropriate, having not had the benefit of hearing the claimant, to reject the view which the judge formed as to the Claimant’s subjective belief.
    1. Mr Lyons pointed out that there had been no respondent’s notice seeking to uphold the judge’s decision on the basis that there was no dishonesty. I do not think that any respondent’s notice was necessary. Such a notice would have been required if (as Mr. Deegan initially accepted in his written skeleton) the judge had found the Claimant to be dishonest, but had rejected the s 57 argument only on the basis that the dishonesty was not fundamental. However, it does not seem to me that this is what the judge did find.
    1. However, even if my conclusion as to dishonesty were wrong, I do not consider that the present is a case where there was fundamental dishonesty; ie dishonesty which went to the heart or root of the claims which the Claimant made.
    1. I accept that an appellate court might more readily overturn the decision of a judge on the question of whether dishonest was fundamental, since that question is in the nature of a conclusion drawn on the basis of other primary facts. I also agree with Mr Lyons that the judge’s decision on this issue was very briefly reasoned, and that the court might therefore be more willing to overturn it.
    1. I do not, however, accept Mr. Lyons’ proposition that the serious nature of the injury is relevant only, or at least principally, to the question of substantial injustice. In my view, the seriousness of the injury is very relevant to the question of whether dishonesty is fundamental, in the sense of going to the heart or root of the claim. If there indeed is a serious injury, and a claimant has been honest about that, then a court may readily conclude that a degree of exaggeration may not go to the heart of the claim, but would more appropriately be regarded (to use some of the words used in the authorities) as incidental or collateral or embroidery. By contrast, in a case where a judge dismisses a claim because the injuries have not been proved at all, then a finding of fundamental dishonesty may easily follow in a case where the claimant has asserted the existence of those injuries: see eg Pegg (a case dealing with CPR 44.16 rather than s 57 of the Act) para [20]. The position will likely be similar if there is some injury, but it is not of any great significance, and the Claimant has exaggerated so as to make it appear very serious.
    1. However, in a case where (as here) there has indeed been a “very serious base injury”, the question as to whether exaggeration reaches the level of fundamental dishonesty is likely to raise a more nuanced question depending upon the degree of exaggeration. I do not therefore accept that the question of whether the dishonesty is fundamental depends upon the nature and manner of the lies, rather than the nature of the injury. The nature of the injury is an important part of the “particular facts and circumstances of the litigation” referred to by Julian Knowles J.
    1. Accordingly, HHJ Murdoch was therefore in my view right when he attached importance to the fact that there had been a “very serious base injury” in the present case.
    1. He also said that there had been an “exaggeration”. Where there has indeed been a very serious injury, the existence of “exaggeration” may well mean that the case is not in the territory of fundamental dishonesty. Exaggeration can of course be dishonest, although the word is very often used to denote statements made which a person would hesitate to describe as dishonest. What is clear in my view is that (as HHJ Hughes recognised) it is not the purpose of s 57 to result in the dismissal of claims where there has been any exaggeration by a claimant. In the committee stage of the Criminal Justice and Courts Bill set out in paragraph [61] of Locog, Lord Faulks QC referred to people who behave in a fundamentally dishonest way by “grossly” exaggerating their own claim. Ultimately, however, the question is one of fact and degree, including consideration of the potential financial consequences of the exaggeration in the context of the claim that is actually advanced by the claimant in the litigation.
    1. In that context, I consider that it is important, as Mr. Deegan submitted, to pay regard to the quantum of the claim and its component parts, particularly in a case where (as here) liability was admitted and there would inevitably be some recoverable damage – as evidenced by the Defendant’s Part 36 offer itself. That must involve considering the extent to which the dishonesty relied upon had an actual or potential impact on the quantum of the claims advanced by the claimant, and the significance of that impact. The authorities and indeed s 57 itself show, however, that it is not an automatic answer to a case of fundamental dishonesty that it related to one component part of the claim, and that there were other components which were completely genuine.
    1. In the present case, it does not seem to me that the exaggerations alleged had an actual or potential impact on the claims advanced so as to move into the territory of fundamental dishonesty. Put simply, they did not go to the root of the claims whether viewed as a whole or individually.
    1. The most significant element of the claim, financially, were the claims for lost earnings, both past and future, relating to the Claimant’s inability to work as a stuntman. These claims failed. The loss of these claims was the result of the lack of evidence “to establish a difference between what a stuntman earns and sedentary employment”. As the judge correctly said, this was unconnected to the exaggerations: “his lies played no part in this aspect of the case”. It was not suggested that this analysis was incorrect.
    1. Mr Lyons submitted, however, that it was not sufficient to look at the claim for lost earnings that was actually brought. It was also necessary to consider what claims might have been brought, potentially, but for the existence of the surveillance video. It was suggested, in substance, that additional claims for lost earnings might have been made if the surveillance video had not been produced. For reasons already given in Section E, I consider that fundamental dishonesty should be considered in the context of claims actually brought, rather than claims that might theoretically have been made but were in fact never made.
    1. In any event, this argument does not withstand scrutiny on the facts. The Claimant did not seek to tailor his case for damages in the light of the surveillance video. When the original schedule of loss was served, the lost earnings claim was put on the basis that the claimant would have earned sums, initially as a trainee and then greater sums when fully qualified, as a stuntman. That was the case that remained, with higher figures, in the updated schedule of loss. Indeed, the surveillance video had no downward impact on the claim made at all: the claim in fact increased in the updated schedule of loss, which was served some 5 months after the surveillance video was disclosed. The Claimant’s case, throughout, was that his injuries were as he had described them: he did not accept that the surveillance video accurately portrayed the true position. This was not, therefore, a case where his evidence changed in material part as a result of that video. Moreover, this was not a case where the Claimant was seeking to argue that the limp, or the other exaggerations referred to by the judge, prevented him from working.
    1. A related aspect of the loss of earnings claim was the Smith v Manchester award. The judge awarded £ 54,000, which represented three years earnings. This was in fact the largest individual component of the Claimant’s successful damages claim. There was no aspect of this claim which was dishonest let alone fundamentally dishonest. The claim was not in fact particularised in the Claimant’s original or updated schedules of loss, but was introduced at trial. The claim succeeded in the full amount for which Mr Deegan had argued in his closing argument. In holding that the claim succeeded in full, the judge said that he had taken into account the fact that the Claimant was more mobile than he said in evidence. But it is apparent that this was not a significant point in the context of other evidence which, on the judge’s findings, showed that the claimant was handicapped in the labour market on the basis of the “serious injury” which he had suffered, the number of operations he had had, and the other factors referred to by the judge.
    1. Mr Lyons suggested that the Smith v Manchester award might have been larger if the judge had accepted the Claimant’s evidence as to the full extent of the impact of the injuries. Mr Deegan said that Smith v Manchester awards are rarely in excess of the three years that the judge awarded – a proposition with which Mr Lyons disagreed. Without resolving the latter debate, it seems to me that the argument that there might have been a significantly higher Smith v Manchester award, if the judge had accepted the Claimant’s evidence, is insubstantial and certainly a long way from fundamental dishonesty territory. The reality is that the judge did not accept that evidence, but nevertheless awarded the full amount for which the Claimant had argued. The Claimant’s case for a full 3-year award was not reduced from what it might otherwise have been, in the light of the surveillance video. On the contrary, the Claimant’s case was that his evidence as to the extent of his injuries should be accepted, notwithstanding the video.
    1. A separate and important aspect of the claim was for PSLA. One of the reasons given by the judge for saying that the findings of exaggeration were “not fundamental in this case” was that they “certainly did not result in a reduction in general damages to the level the defendant submitted or indeed anywhere near that level“. Contrary to the submissions on behalf of the Defendant, it does seem to me that this is an important matter in the context of the fundamental dishonesty argument. The claim for PSLA was not quantified in the original schedule of loss, but was in due course quantified in the sum of £ 92,000 in the updated schedule of loss. That claim comprised a principal element for the knee injury (£ 80,000), and an element for psychological damage (£ 12,000). In relation to the latter, the judge’s award was £ 10,000, and was thus very close to the figure claimed. The judge’s award of £ 50,000 rather than £ 80,000 for the knee injury element did represent a reduction. It was not, however, a reduction which can be said to indicate that there was gross exaggeration of the PSLA element of the claim or dishonesty which went to the heart of the claim. On the contrary, the amount awarded showed that the judge considered that the injury fell into the category of a severe leg injury, and within that category was to be regarded as “serious”. It is unfortunate that the judge seems to have mistakenly referred to the Judicial College guidelines for leg injuries rather than knee injuries. However, if the amount awarded is to be taken as the reference point, the applicable categorisation for knee injuries would again be “severe”, covering “leg fracture extending into the knee joint causing pain which is constant, permanent, limiting movement or impairing agility, and rendering the injured person prone to osteoarthritis and at risk of arthroplasty”.
    1. I accept that it is possible that the award might possibly have been higher if the judge had accepted the Claimant’s case in full. But I was not persuaded that it would have been significantly higher. The judge’s decision was based upon various factors: that this was a “nasty” knee injury (and it had involved a large number of operations); the claimant was previously very fit and agile, but was now restricted; he had ongoing pain, with no doubt that he had pain at the end of a long day; that he was unable to return to his previous physical activities, including his great hobby of parkour; and that he would, on the balance of probabilities get osteoarthritis and require a knee replacement. All of those factors drove an award which was (taken together with the psychological injury) some 5 times as high as that for which the Defendant argued. The fact that it was, possibly, somewhat reduced from what it might have been in the Claimant’s case had been accepted in full, does not seem to me to bring this case within “fundamental dishonesty” territory.
    1. Conversely, I can see that if the judge had accepted the Defendant’s case that the injury was only worth £ 12,000, then the case for fundamental dishonesty might have been stronger; because on that hypothesis the Claimant would have been pretending to have a severe injury when in fact there was nothing too much wrong. But those are not the facts of the present case.
    1. It also seems to me that this was really the point which was made by the judge in paragraphs 9 and 10 of his 8 October 2020 judgment on costs. The judge there said:
“9. So what was the reality of this case? The reality of this case is that the claimant was faced with a submission that his claim should be dismissed because he had been fundamentally dishonest. If that submission had succeeded the claim would have been dismissed, I would have been assessing damages on the basis of a very minor, relative to the claim, injury and many of the heads of loss which I found in my judgment would have equally been dismissed.
10. I did not have to do this exercise but, broadly, there would have been a finding for the claimant perhaps in the sum of £20,000 or so. That would have been offset against, no doubt, an order for costs against the claimant. So the claimant’s claim would have been dismissed, he would have had a costs order against him subject to a deduction for my assessment of what the true worth of his claim was. The claimant would then possibly have faced a criminal sanction arising from findings of dishonesty and fundamental dishonesty. That was the case that the claimant faced, instead of which I have awarded him substantial damages of over £100,000″
    1. Mr Lyons submitted that this paragraph showed that the judge did not really understand the nature of a case under section 57; because he seems to have thought that he would have been assessing damages on the basis of a very minor injury in the context of section 57, when in fact he would have been required to make findings on all aspects of the injury and these would not be reduced by reason of the section 57 argument. In my view, however, the judge did not misunderstand section 57. His point in these paragraphs was essentially that if the claim had been fundamentally dishonest, that would likely have been a consequence of the fact that there was nothing much wrong with the Claimant (as the Defendant contended), with the consequence that he only recovered damages in a relatively small amount. In contrast, on the basis of the judge’s findings, the claim was substantially successful, notwithstanding the element of exaggeration that the judge considered to exist.
    1. As indicated above, Mr. Lyons made a point on appeal, which he had not made to the judge, concerning the claim for the automatic car. This was, in context, a comparatively small claim of £ 15,000 which in the event was not pursued. The claim was introduced into the Claimant’s claim after the surveillance video had been disclosed, showing again that this is not a case where a Claimant has tailored his case in the light of surveillance evidence.
    1. I do not consider that it has been shown that this claim was causally related to the exaggerations relied upon by the Defendant. It was put forward on the basis that the weakness in the Claimant’s knee meant that he needed to drive an automatic car. That does not seem to me to have anything much to do with limping or the other exaggerations relied upon. Indeed, the judge accepted that the Claimant did indeed have weakness in his knee, and this seems to me to be indisputable on the evidence. The reason that the claim was not pursued was that the experts considered that, despite the Claimant’s knee problems, he could nevertheless drive a manual car. There was no evidence that either expert would, or might, have taken a different view if the Claimant’s evidence as to limping and his other difficulties were accepted. This was not a point which appears to have been explored in the evidence, and it seems to me that the Defendant did not lay the groundwork for the argument about the automatic car. In any event, the argument about the automatic car seems to me to be a very long way from a case of fundamental dishonesty, whether taken on its own or in conjunction with the other matters on which the Defendant relies.
    1. I reach the similar conclusions in relation to the care costs, past and future, claimed by the Claimant. The claim for past care costs was put on a “broad brush” estimate of 1 hour a day. The case failed because, in the judge’s view, the evidence as to care provided by the Claimant’s brother lacked detail. In addition, the experts did not support the level of care for which the Claimant argued. The judge did accept, however, that some 133 hours of care should be awarded, reflecting the fact that care had indeed been provided in the past.
    1. Accordingly, the position is that the Claimant had indeed required care in the past, but his “broad brush” estimate – of a relatively low level of care at one hour a day – was not accepted in the light of all the evidence. It does not seem to me that this can sensibly be said to be a case where dishonesty went to the root of the Claimant’s case. Furthermore, I do not consider that it has been shown that the claim for care costs was materially linked to the areas where the judge considered that there had been exaggerations. The latter principally concerned the way in which the Claimant would move about on a day-to-day basis, rather than anything to do with care provided by his family. There was also no evidence that the experts would, or might, have taken a different view if they had accepted the Claimant’s account of his injuries in full.
    1. The same applies to the future care costs. This claim was introduced in the updated schedule of loss. It was in fact based upon the conclusions in the joint report of the orthopaedic experts, as to the need for a level of future care in relation to heavy housework and gardening or other activities which involved kneeling and squatting. That conclusion was reached after the experts had seen the surveillance video, and the Claimant then sought to rely upon the joint agreement in relation to this aspect of his claim.
    1. I again cannot see that this could be regarded as a case of fundamental dishonesty. The claim has not been shown to be related to the exaggerations relied upon by the Defendant. In any event, the experts had agreed upon the need for the relevant care and assistance, and the Claimant had advanced a case based upon that evidence. The substantial reduction, in the judge’s award, from the 3 hours per week claimed, was not a consequence of the failure of the Claimant’s case in relation to the areas where there had been exaggeration. Rather, it was because the experts, when asked further specific questions as to the level of care, did not consider as much as 3 hours per week would be required, although it was agreed that some care would be required.
    1. The position overall is that although the judge’s reasoning was brief, his judgment was ultimately sound in that, as he said, this was not a case of fundamental dishonesty.