HIGH COURT JUDGE OVERTURNS FINDINGS OF FUNDAMENTAL DISHONESTY AT TRIAL: “ALL CITIZENS ARE EQUALLY ENTITLED TO COME BEFORE THE COURTS IN CIVIL CLAIMS”

In Cojanu v Essex Partnership University NHS Trust [2022] EWHC 197 (QB) Mr Justice Ritchie overturned a trial judge’s findings of fundamental dishonesty. The fact that a claimant had lied about the cause of his injuries did not impact upon the claim for clinical negligence arising from those injuries.  Further there had been no fundamental dishonesty in the claimant’s claim for damages.

“all citizens are equally entitled to come before the courts in civil claims. Those with a long list of previous convictions and those without.  Some will have better credibility than others, but S.57 is not a credibility filter barring those with previous convictions from bringing civil actions.  S.57 focusses on the claim and the matters fundamental thereto and the Claimant conduct therein.”

THE CASE

The claimant brought an action for damages for clinical negligence suffered whilst he was a prisoner on remand.  The claimant had suffered knife injuries and the defendant had been negligent in the treatment of those injuries.

THE DEFENDANT’S AMENDED DEFENCE

The defendant was given permission to plead an amended defence which alleged fundamental dishonesty.

1. 16. That amended defence dated the 8th of February 2021 alleged fundamental dishonesty by the Claimant. It alleged that the Claimant had attacked his wife with a knife and stabbed her whilst drunk and whilst their children were in the house. It alleged he injured himself in the attack or whilst resisting arrest. It was alleged that he was convicted of attempted murder in December 2015 and imprisoned. It alleged that the Claimant’s served witness statement in the personal injury claim contained evidence that was fundamentally dishonest by stating that the Claimant’s wife had attacked him and that he had defended himself from the knife attack and that that was how he came to have cuts to his fingers. In addition, the Defendant pleaded that in February 2016 a surgeon offered reconstruction to the Claimant who said he would think about it but never returned and never took up the offer. In addition, the Defendant pleaded ex turpi causa (illegality) and relied on case law stating that his injuries and the claim were result of his own criminal actions and therefore he should be denied any damages. The amended defence went on to suggest further fundamental dishonesty by the Claimant in that the Claimant’s evidence and case relating to quantum was based on various dishonest premises. The Claimant was living in Romania by that time, where surgery was cheaper, the Claimant’s claim was premised on loss of earning capacity based on UK salaries and yet he intended to live in Romania and the Defendant relied on section 57 of the Criminal Justice and Courts Act 2015 (CJCA). Three weeks later the trial took place.

The trial judge found the claimant to be fundamentally dishonest in giving the incorrect cause of the injuries he had suffered and in relation to the claim for damages.

OVERTURNING THE FINDINGS OF FUNDAMENTAL DISHONESTY

The judgment contains a detailed consideration of the findings of fundamental dishonesty.  The trial judge found that the claimant had been dishonest in how the injuries to his hand were caused. However that was not at all relevant to the issue of the defendant’s clinical negligence.

60. The issues in the civil claim on liability were: (1) whether the referral letter was posted or faxed, if it was not faxed negligence was admitted and (2) the extent  to which the symptoms which the Claimant was suffering from the cuts were caused by the failure to repair the cuts in the 10 week window after the injury. There was agreement between the medical experts that this would be 15% of the loss of use of the right dominant hand.

61. I consider that the mechanism by which the Claimant received his cut was irrelevant to success in the clinical negligence claim.  The Claimant did not need to prove how he was cut to win the civil action.  He was injured before admission to prison. At that time he was not convicted of anything.   It matters not whether he had suffered the injury opening a tin of beans, in gang warfare or whilst attempting to murder his wife.  In the civil claim at first the Claimant said nothing of the cause of the cuts. Nor did he need to. Later, when the defendant pleaded it out, the Claimant lied about the cause. The Claimant was being dishonest in relation to his crime, during which he was injured and for which he has never admitted his guilt.  But the cause of the cut fingers has no relevance to the clinical negligence claim. In my judgment the mechanism of how he cut his finger is incidental to the claim or collateral thereto.

62. The dishonesty in relation to how he suffered the cut only connected with the civil claim because it impinged on the Claimant’s credibility, and even then only in relation to his crime.  The Claimant’s credibility on that issue was not relevant directly to his evidence in the civil claim and did not affect the liability part of the trial because liability was determined on expert evidence not the Claimant’s evidence.

63. This gives rise to the question: “can dishonesty affecting the Claimant’s credibility in relation to a crime he has committed before the civil claim (and his deportation at the end of his sentence), be fundamental to the evidence on quantum in the civil claim?”.  Or using the Knowles J wording: “does the Claimant’s dishonesty about his crime which affects his credibility when giving evidence about the crime, go to the heart or the root of the civil claim?” In addition, I must ask: “does the Claimant’s credibility on that issue have a significant adverse effect on the way the Defendant should run its defence on liability or quantum?”

QUANTUM

The finding of dishonesty in relation to quantum was also overturned.

65. Firstly, all citizens are equally entitled to come before the courts in civil claims. Those with a long list of previous convictions and those without.  Some will have better credibility than others, but S.57 is not a credibility filter barring those with previous convictions from bringing civil actions.  S.57 focusses on the claim and the matters fundamental thereto and the Claimant conduct therein.

66. Secondly, the Defendant made great play of finding out itself about the Claimant’s conviction for attempted murder and then deciding to amend the defence as a result. But the medical report of Mr Bainbridge dated 1.3.2018 set out that he was in prison and the letter before action set out the same. That he was a convicted criminal was an open fact which was not to be avoided. I consider that there was no reason for the Claimant to mention his crime in the letter before action or the statement of claim.  It was not a necessary part of the claim.  He had nothing to prove in relation to the crime.   Insurers and the NHS have to deal with every English and Welsh citizen who is injured.   They cannot and do not turn away criminals or any other classes of person. The should and do not discriminate against patients on any ground.  The same applies to the civil law.  So I consider that this man, who has been convicted and found guilty of the horrific attempted murder of his wife, is not deprived of his right to sue simply because he was convicted or because he was at trial and still is dishonest about what happened during his crime. 

67. I understand that in relation to proof of quantum of suffering by a criminal the Defendant would have become much more wary of the Claimant’s earning potential due to his criminal conviction but that is part of the factual matrix of any claim by a convicted criminal. Negligent defendants must take their victims as they find them. Not all victims are angels.  On quantum the Defendant was no doubt more wary of any assertion the Claimant might make in relation to loss and expense because of the conviction.  His lies relating thereto may have increased that wariness.   Suspicion and wariness is what occurs in many cases when Claimants, for a wide range of reasons (some psychiatric, some emotional, some educational, some cultural, some criminal) show themselves to be unreliable in some aspect of their own evidence. But I do not perceive these challenges to be within the mischief target of S.57.  The primary rationale for S.57 is to stamp out fraudulent and dishonest claims not to bar unrepentant or “in denial” criminals from the civil law.

68. On quantum the only change which the Claimant’s dishonesty as to his crime brought about was the amened pleading of the defence by the addition of S.57 and of illegality by the Defendant.  The detail of the quantum in the counter schedule dealt with his low earnings and patchy work history and the fact he was a criminal but it did not substantially change the way the quantum defence was approached.

69. Finally, a yardstick I used to measure whether the dishonesty of the Claimant about his crime and deportation was fundamental to the civil claim was to ask what would be the wider effect of such a finding?  Regrettably there are hundreds of drugs related gang stabbings in London and around England each year.  Young men cut and kill each other over territory and drugs or other matters.  If every one of those who were brought into hospital or prison and who denied criminality or starting the fight (and yet was convicted) is to be deprived of any civil claim when the hospital negligently cuts off the wrong leg or fails to treat the young man at all (because he is presumed to be a criminal), then the common duty of care owed by the NHS to all residents would be wholly undermined and likewise the will of Parliament when it imposed the equality principle for medical treatment of prisoners.

70. I rule that the Claimant’s dishonesty about his crime was not fundamental to either liability or quantum in the civil claim.