CLAIMANT FOUND TO BE FUNDAMENTALLY DISHONEST WHEN GIVING EVIDENCE ABOUT A BICYCLE
My attention has recently been drawn to the judgment of HHJ Ralton in Darnley -v- Cornish 2021 WL 04760420. The judge, on appeal, overturned a finding that a claimant, who had misled the court as to ownership of a bicycle damaged in an accident, was not fundamentally dishonest. On appeal it was found that there was clear dishonesty and it was fundamental to the claim. The usual consequences of a finding of fundamental dishonesty applied.
“The dishonesty, in my judgment, started when he referred to “my bike” in his witness statement and this was not a case of, for example, a technicality arising which caused the claim to fail or a simple mistake arising, such that the claimant lost the bike claim, or a misinterpretation.”
The claimant brought an action for damages for personal injury. As part of the claim for special damages he included a claim for the costs of a bicycle.
THE JUDGMENT IN RELATION TO THE DAMAGED BICYCLE
15. So far as the bike is concerned, Mr Cornish did not amplify upon the bike in his witness statement. In the last paragraph
he says: “As a result of the accident I also sustained damage to my bicycle, jacket, et cetera, as detailed in my schedule of
loss.” And in the court below Mr Cornish placed reliance on a quote from Brecon Beacons Cycle Hub Ltd setting out that
the bicycle, a specialised Epic Elite World Cup 2015 model year, would cost £4,000 and then they break down the costs
of various other upgraded bits for the bike, equipment and clothing. There is no other information about the bike. Clearly
the case the defendant is meeting there is that Mr Cornish has a bike, he says “my bicycle”, and wishes to be compensated
for his loss.
15. Mr Marwick cross-examined Mr Cornish at length about his acquisition of the bike. We have the transcript of the
cross-examination, indeed all of the evidence was before the district judge orally, and the submissions. The transcript shows
that initially Mr Cornish gave evidence that he purchased the bike from the Tredz Bicycle Shop for £4,000, paid for on a credit or debit card. On further questioning he changed his evidence to payment by himself of £1,000 and his partner paying the other £3,000. That evidence
was given after Mr Cornish was cross-examined about evidence of his financial means at the time.
15. Then Mr Cornish said that he was given the bike by Tredz to race on. Indeed, even the district judge intervened and the
evidence then from Mr Cornish was that no money at all had changed hands, but then Mr Cornish indicated that ownership
of the bike remained with Tredz, but that if he was to keep the bike he was to pay Tredz.
15. There was also an issue about the bike lights. Mr Cornish had made a claim for the bike lights and no doubt it will have
been assumed that his case was that the lights, by reason of the accident, were no good and had to be replaced.
15. And then we have this exchange. Question, “Did your handlebar lights still work?” Answer, “That one, I haven’t
used that one either since, so.” Question, “And did you try using it?” Answer, “Um, I tried using it but it’s not as good
as it was.” Question, “What do you mean it’s not as good as it was, it’s a light?” Answer, “Yes, it has. They’re quite a
complicated light in terms of longevity and use. You’ve got three different settings on them and —” Question, “Well, that’s
fantastic, but in what way is it not as good?” Answer, “You’ve got three different settings on the light to use and (something)
settings. It doesn’t work as well as it used to.” Question, “In what way?” Answer, “Well, it’s not going through the three
different settings properly as it should do.” Question, “OK. So you continued to use it or did you have to buy replacements?”
Answer, “I haven’t continued to use it, no.” Question, “So how did you know the settings wouldn’t work?” Answer, “Well,
I obviously tried them out afterwards, but (something) after that, so.”
15. I have referred to that part of the cross-examination because Mr Marwick submitted, with I think fair force, that it
reflects the way the claimant generally gave his evidence, namely consistent vagueness.
16. I turn now to the judgment of DJ Field, limiting myself for the moment with respect to the bike. The district judge
summarised the evidence that he heard about the bike and then said:
“In short, it was not possible to fully understand the arrangement regarding this bike. What is clear is that the claimant knowingly
and intentionally misled the court and was extremely reluctant to explain the true position. He gave the firm impression that
he had paid for the bike in the first place and under further cross-examination accepted that he simply had not. Frankly, I am
baffled as to the purpose of this dishonesty. Had the bike been gifted as a promotional item or sponsorship by Tredz, the claimant
would still have an entirely valid claim for the value of it. Conversely, if it was clear that the bike still was owned by Tredz, then
they could easily have been added as a second claimant and the damage was compensated. Instead, the claimant, for reasons
which were unclear, has wasted court time and the efforts of the defendant’s counsel and solicitors in unpicking a situation
about which he could, and should, have been straightforward.”
15. The judge then goes on to consider why the claim for the bike should fail. When DJ Field reserved judgment he knew
that the defendant was advancing a section 57 argument. In his reserved judgment he said:
“The application is not without merit. The claimant was dishonest initially in evidence in respect of the special damages claim,
which was a sizeable proportion of the value of the claim. Had the special damages claim been put with proper candour and
particularity at the outset, time and expense is likely to have been saved. The pleading itself is not inherently dishonest, although
it clearly lacks appropriate details and information. If more pleaded in evidence, it is not impossible that the special damages
claim could have succeeded. The dishonesty in evidence appears to have been an attempt to support a claim which was not
obviously hopeless but which the claimant appears to have developed doubts about.”
15. Then one also has to read across to the order at C1 where DJ Field says:
“I have considered the written submissions of both parties and my decision is as follows. I do not consider that the entirety of the claimant’s costs should be disallowed as a result of his conduct in misleading the court during evidence. For the reasons set out in the judgment, I consider that the dishonesty fell short of being fundamental and it is relevant that it has not clearly been shown or found that the claim was pleaded dishonestly. The dishonesty was specifically in relation to a false impression about the special damages given during evidence and then corrected under cross-examination.”
15. Then he goes on to say:
“Nevertheless, it is conduct which should not go unmarked by the court. The special damages claim was put forward with
minimal supporting evidence and was pursued dishonestly during the hearing until the claimant was pressed on this. Even then
he was evasive about the issue until I asked him directly how much cash he had handed over in return for the bike. This was
not a minor element of the claim, but one which comprised approximately half the sums claimed.”
15. Then the judge went on to reduce Mr Cornish’s costs by 50 per cent. So, notwithstanding his expressed findings of
fact, his use of the term “dishonestly” against the claimant, who was found to have, and I use this the district judge’s words,
“knowingly and intentionally misled the court,” which, incidentally, is also misleading the defendant, DJ Field found that
the bike claim, which he found was sizeable, was not a fundamentally dishonest claim, albeit he still decided to reduce the
claimant’s costs. In my judgment, on reading the authorities and section 57, on his own findings that decision was not a
decision which was a decision DJ Field could reasonably make.
15. Miss Openshaw argues that scant detail was pleaded about the bike and that the quality of the evidence advanced about
the bike must be looked at in the light of fast-track claims, but the claimant was on notice by reason of the counter schedule
that he had to prove his claim about the bike.
15. Miss Openshaw argues that the bike claim could have succeeded, as observed by the district judge. In a sense I agree
with Miss Openshaw. A person, a cyclist, who has had their bike critically damaged in a road traffic accident should not
find it a difficult task to prove their loss. But, notwithstanding Mr Cornish’s changes in his evidence, the answers, it would
appear, being given in an attempt to hold on to this claim, Mr Cornish was not able to show that the loss was his.
15. The dishonesty, in my judgment, started when he referred to “my bike” in his witness statement and this was not a
case of, for example, a technicality arising which caused the claim to fail or a simple mistake arising, such that the claimant
lost the bike claim, or a misinterpretation.