ALLEGATIONS OF FUNDAMENTAL DISHONESTY FAILED: MANY OF THE ASSERTIONS DID NOT GO “TO THE HEART OF THE CLAIM”

In Afriyie v Commissioner of Police for the City of London [2023] EWHC 1632 (KB) Mrs Justice Hill rejected the defendant’s twelve allegations of fundamental dishonesty made against a claimant.  Some of the assertions were rejected because they did not go to the “heart of the claim”.

 

“I accept Mr Hughes’ submission that they do not go to the heart of the claim. Any failure to cooperate with the breathalyser procedure was relevant to the arrest, the legality of which the Claimant did not challenge. It was not directly relevant to the central question of the use of force by the officers: that was largely determined by reference to the Claimant’s behaviour after he was arrested.”

THE CASE

The claimant brought an action against the defendant police force after being stopped whilst driving.  This claim that there was an assault and for misfeasance in public office failed.  The judge then went on to consider the allegations of fundamental dishonesty made by the defendant.

THE JUDGMENT ON FUNDAMENTAL DISHONESTY

7: Fundamental Dishonesty
7.1: The legal framework
    1. The Criminal Justice and Courts Act 2015, s.57 provides as follows:
“57 Personal injury claims: cases of fundamental dishonesty
(1) This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”) –
(a) the court finds that the claimant is entitled to damages in respect of the claim, but
(b) on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.
(2) The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.
(3) The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.
(4)  The court’s order dismissing the claim must record the amount of damages that the court would have awarded to the claimant in respect of the primary claim but for the dismissal of the claim.
(5)  When assessing costs in the proceedings, a court which dismisses a claim under this section must deduct the amount recorded in accordance with subsection (4) from the amount which it would otherwise order the claimant to pay in respect of costs incurred by the defendant.
(6)  If a claim is dismissed under this section, subsection (7) applies to –
(a)  any subsequent criminal proceedings against the claimant in respect of the fundamental dishonesty mentioned in subsection (1)(b), and
(b)  any subsequent proceedings for contempt of court against the claimant in respect of that dishonesty.
(7)  If the court in those proceedings finds the claimant guilty of an offence or of contempt of court, it must have regard to the dismissal of the primary claim under this section when sentencing the claimant or otherwise disposing of the proceedings.
(8) In this section –
“claim” includes a counter-claim and accordingly, a “claimant” includes a counter-claimant and “defendant” includes a defendant to a counterclaim;
“personal injury” includes any disease and any other impairment of a person’s physical or mental condition
“related claim” means a claim for damages in respect of personal injury which is made –
(a)  in connection with the same incident or series of incidents in connection with which the primary claim is made, and
(b)  by a person other than the person who made the primary claim. […].”
    1. The effect of the section is therefore that if the judge is satisfied that the claimant has been fundamentally dishonest in relation to the primary claim and/or a related claim, then the judge must dismiss the claim including, by virtue of s.57(3), any element of the primary claim in respect of which the claimant has not been dishonest unless, in accordance with s.57(2), the judge is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.
    1. In Jenkinson v Robertson [2022] EWHC 791 at [20]-[24], Choudhury J reviewed the authorities on s.57. At [25], he summarised their effect, as is material to this case, as follows:
“i) The burden is on the defendant to establish on the balance of probabilities that the claimant has been fundamentally dishonest;
ii) An act is fundamentally dishonest if it goes to the heart of or the root of the claim or a substantial part of the claim;
iii) To be fundamentally dishonest, the dishonesty must be such as to have a substantial effect on the presentation of the claim in a way which potentially adversely affects the defendant in a significant way;
iv) Honesty is to be assessed by reference to the two-stage test established by the Supreme Court in Genting“.
    1. The ‘Genting‘ test is that referred to by Lord Hughes in Ivey v Genting Casinos Limited (t/a Crockfords Club) [2017] UKSC 67 at [74], thus:
“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. Cojanu v Essex Partnership NHS Trust [2022] EWHC 197 (QB) was an example of an allegation of dishonesty that was found not to go to the “root of the claim”. The Claimant was serving eleven years in prison for the attempted murder of his wife with an eight-inch knife. On his admission to the prison where he was held in remand, he had deep cuts to two fingers, which he attributed to an attack on him by his wife. He later brought a claim in negligence against the NHS trust that supplied services to the prison, which accused him of lying about sustaining the injuries when he attacked his wife or was resisting arrest. On appeal, Ritchie J overturned a finding of fundamental dishonesty by the County Court and held that the manner by which he sustained the injuries were irrelevant to the question of the Trust’s liability for negligence.
    1. In London Organising Committee of the Olympic and Paralympic Games v Sinfield [2018] EWHC 51 at [65], Julian Knowles held that:
“…substantial injustice must mean more than the mere fact that the claimant will lose his damages for those heads of claim that are not tainted with dishonesty. That must be so because of s.57(3). Parliament plainly intended that sub-section to be punitive and to operate as a deterrent. It was enacted so that claimants who are tempted to dishonestly exaggerate their claims know that if they do, and they are discovered, the default position is that they will lose their entire damages. It seems to me that it would effectively neuter the effect of s.57(3) if dishonest claimants were able to retain their ‘honest’ damages by pleading substantial injustice on the basis of the loss of those damages per se. What will generally be required is some substantial injustice arising as a consequence of the loss of those damages.”
7.2: Submissions and analysis
    1. The Defendant alleged that the Claimant had been fundamentally dishonest about the twelve issues referred to below. The Claimant’s response was, in summary, that he had not been dishonest; any discrepancies were the result of honest mistakes by a man who had suffered a forceful blow to the head and a traumatic experience; and/or any findings of fundamental dishonesty did not go to the heart of the claim in the sense described in the case-law as summarised in Jenkinson at [25].
(i): Whether the Claimant put something in his mouth, having been told not to
    1. Mr Ley-Morgan submitted that PC Rickman’s BWV footage clearly showed the Claimant removing something from his mouth as he walked away from PC Rickman. His suggestion was that it was chewing gum, with the implication being that, having been told that chewing gum distorted the results, the Claimant was trying to “game” the breathalyser device. The Claimant maintained that he had had nothing in his mouth and therefore nothing to throw away. His evidence on watching the footage at the second trial was that it seemed like he had touched his chest. No chewing gum was ever recovered.
    1. I did not have the benefit of hearing evidence from PC Rickman at the trial, which may have assisted in resolving the conflict of evidence between him and the Claimant as to whether the Claimant had been seen putting something in his mouth while in the car. The BWV does not, in my judgment, clearly show the Claimant removing something from his mouth. The Defendant has not therefore proved that the Claimant has been dishonest on this issue.
    1. In any event, in my judgment, this is not an issue that goes to the heart of the claim. It was part of the factual chronology of events leading to the crucial fifth breathalyser test, and to some limited degree may have contributed to PC Worster’s assessment of the Claimant as “non-compliant”, but it was not central to the officers’ use of force. Further, PC Rickman’s evidence on this issue was not relied on as an example of officers allegedly lying for the purposes of the exemplary damages claim.
(ii): Whether the Claimant was cooperating with the breath test procedure
(iii): Whether he stopped blowing on the fifth occasion because a police officer told him to stop
    1. The Claimant was asked at the scene whether there was any medical reason why he could not give a breathalyser sample. He said that he suffered from certain breathing issues. The Defendant’s case is that he was lying about this matter: he played football and went to the gym regularly before the incident; he told Mr Carroll he went running; and his medical records did not support his claim to suffer from breathing difficulties on exertion. Further, the Claimant’s attendance at A & E a few weeks after the incident in which he reported breathing problems led to no abnormality being detected and was a “sham”, intended to create evidence of such difficulties in his medical records for the purposes of this claim.
    1. In my judgment this issue was largely irrelevant: the Claimant did not suggest that any breathing difficulties had prevented him from giving the sample. Rather, his case was that he was cooperating with the breath test procedure and only stopped blowing into the device once PC Worster said “that was it”. I cannot accept either of these propositions. As noted at [60] above, I accept the Defendant’s analysis that the Claimant stopped exhaling at the point at which he can be seen raising his eyebrows and blinking, before PC Worster said, “That’s it, sounds like that’s happened”. In my judgment the Defendant has proved that the Claimant has been dishonest about these issues.
    1. However, again, I accept Mr Hughes’ submission that they do not go to the heart of the claim. Any failure to cooperate with the breathalyser procedure was relevant to the arrest, the legality of which the Claimant did not challenge. It was not directly relevant to the central question of the use of force by the officers: that was largely determined by reference to the Claimant’s behaviour after he was arrested.
(iv): Whether the Claimant honestly thought the officers might kill him
    1. In his first witness statement, the Claimant said that while he was on the floor after the tasering (i) he recalled one or more officers putting their body weight on to the back of his knee, causing a lot of pain; (ii) he could feel an officer leaning on his back and pressing down on his chest; and (iii) he was struggling to breathe. He said he remembered thinking that the officers were going to kill him. He said he could not recall when in the sequence of events this took place.
    1. Mr Ley-Morgan submitted that the fact that the Claimant was repeatedly warned to calm down or he would be tasered, that he was given appropriate aftercare after he was tasered, and that no force (other than handcuffing) was used on him until he started to become aggressive shows that he could not possibly have believed, as he said, that the officers were going to kill him.
    1. I respectfully disagree. The Claimant had had potentially lethal force applied to him. At the time he described having this thought, he was restrained in the prone position on the floor and was struggling to breathe. It is therefore plausible that he genuinely thought that the officers might kill him. Alternatively, his perception may have been skewed given that he had sustained a blow to the head and was unlikely to be thinking straight. Accordingly, the Defendant has not proved that the Claimant was fundamentally dishonest about this issue. It does not go to the heart of the claim in any event.
(v): Whether a police officer knelt on the Claimant’s lower back
(vi): Whether the Claimant suffered a knee injury
(vii): Whether the Claimant suffered a back injury
    1. The Claimant said in his first witness statement that he recalled one or more officers putting their body weight on to the back of his knee causing him a lot of pain; and that he could feel an officer leaning on his back and pressing down on his chest. He was recorded by Mr Carroll as saying that when he “came around”, he had been handcuffed and “two officers were kneeling on his back and right knee”. During the first trial, Mr Ley-Morgan put to him that the BWV clearly showed that this had not occurred. In the Claimant’s second witness statement, provided between the two trials he reiterated the account given in his first statement. He recognised that his recollection or perception of these specific details might have been mistaken given that he had sustained a blow to the head, was in shock and was dazed and confused.
    1. Mr Ley-Morgan submitted that the Claimant’s concession that he may have been mistaken was at odds with his previous unequivocal allegations and shows that he had lied. I disagree. The Claimant’s evidence in these proceedings has been consistent, to the effect that the felt pain to his knee and back and believed that police officers were placing their body weight on him. To the extent that he was wrong with respect to the source or location of the pressure on him, it is plausible that this was a genuine mistake, made after he had sustained a heavy blow to the head and in the context of a situation where he was restrained on several occasions.
    1. Further, Mr Ley-Morgan’s position was that, since no officers knelt on the Claimant’s knee or back, he must have been fabricating the injuries to these areas that he alleged. Again, I do not accept this. Mr Carroll’s evidence suggests that the Claimant does have issues with his back and knee, albeit disputing that they were caused by this incident.
    1. Accordingly, although these are issues that go to the heart of the claim, the Defendant has not proved that the Claimant has been fundamentally dishonest about them.
(viii): The Claimant was drifting in and out of consciousness
    1. I have found at [122] above that the Claimant may have lost consciousness for a brief period and if not was in a concussional state. Mr Hughes was right to submit that determining precise states of consciousness is a matter for medical experts. I do not accept that the Claimant has been fundamentally dishonest in saying that he was drifting in and out of consciousness, especially given the impact of his head injury and the stress of the incident.
(ix): Whether the Claimant could not provide a sample of blood at the hospital because has a needle phobia
    1. The Claimant’s evidence was that while he does not have a medically diagnosed needle phobia, and does not find having injections unduly difficult, he has struggled for many years with giving blood. He said that while he will provide a blood sample if absolutely necessary, it takes a lot of “psyching up” and reassurance from the person conducting the test for him to do so. His phobia in this respect has been heightened by his work with young people who have been stabbed. It was for these reasons that at hospital he asked to be given morphine in liquid form; and when the officer told him he was required to give a sample of urine or blood, he offered a urine sample. There is no record of this on the officer’s BWV.
    1. Mr Ley-Morgan relied on medical records showing that the Claimant had had vaccinations before going on holiday in 2010 and 2016 and had completed a course of acupuncture in 2015. None of these examples were inconsistent with the Claimant’s account of his specific difficulties with giving blood. He also referred to specific occasions when the Claimant had blood samples taken: when he was aged 17, in around every 6 months in 2012 and in March 2013. Again, this was not inconsistent with the Claimant’s case that he will give blood when necessary, but will avoid if it possible. It was not clear that the fact that the officers BWV did not capture the Claimant offering a urine sample meant that he did not do so.
    1. I am not therefore satisfied that the Claimant has been fundamentally dishonest about this issue.
    1. Even if he had been, this issue does not go to the heart of the claim as the question of the blood sample post-dated the use of force by the officers. To the extent that it might have been relevant to the reasons for the Claimant’s arrest or prosecution, he did not challenge the lawfulness of either of those decisions in this claim.
(x): Whether the Claimant sustained any of the injuries described in paragraphs 81-91 of his first witness statement
    1. The Defendant’s case was that the Claimant had knowingly exaggerated the physical and mental injuries he described in his witness statement.
    1. Two of the paragraphs in the Claimant’s witness statement cited by the Defendant in this part of the fundamental dishonesty claim are simply narrations of the facts: at paragraph 85 he described his attendance at King’s College Hospital on 12 April 2018 and at paragraph 91 he referred to attending his GP surgery on a number of occasions regarding his head injury. These matters are clear from the Claimant’s medical records and there is no basis for the assertion that he has been fundamentally dishonest about them.
    1. In the remaining paragraphs cited above, he described the injuries he sustained to his head and the consequences thereof. Professor Warner’s evidence provides support for the Claimant’s account of these symptoms, albeit concluding that the cognitive issues described by the Claimant were not attributed to the head injury but to psychological issues. I would have awarded the Claimant damages for the other aspects of his claim relating to his head injury: see [123]-[126] above.
    1. Accordingly, although these are issues that go to the heart of the claim, the Defendant has not proved that the Claimant has been fundamentally dishonest about them.
(xi): Whether the Claimant experienced the symptoms and sequelae described in paragraphs 95-107 of his first witness statement
    1. At paragraphs 95-98 of his statement the Claimant referred to the laceration to the back of his head and the puncture wounds, for which I would have awarded him damages: see [121], [126] and [127] above. He also referred to some neck sprain, which was contemporaneously recorded in his medical notes.
    1. At paragraphs 99-100 and 101-104, the Claimant described the pain in his lower back and right knee. I have addressed this at [176]- [179] above.
    1. At paragraphs 105-107, the Claimant said that the impact of his injuries had adversely impacted his ability to drive, complete household chores and go to the gym. He was not cross-examined about these matters.
    1. I therefore do not accept that the Claimant has been fundamentally dishonest about any of these matters.
(xii): Whether the Claimant experienced the symptoms and sequelae and suffered the financial losses described in paragraphs 108, 109, 113-115, 117-119 and 122-137 of his witness statement
    1. At paragraphs 108, 109, 113-115, 117-119 and 122-132 of his statement, the Claimant described the adverse impact the incident had on his mental health. I would have accepted his account of these issues and awarded him damages for his injuries: see [135]-[140] above.
    1. At paragraphs 133-135 of his statement, he described the treatment recommended by Dr Agarwal and confirmed that he would be willing to try it. He also explained that he had taken 4 months off work (paid). There is no basis for a finding of fundamental dishonesty in relation to these parts of the Claimant’s evidence.
    1. At paragraphs 136-137 of his statement he set out the basis of his claim for damage to his top and jeans, on which I would have found in his favour: see [142]-[143] above.
    1. I therefore do not accept that the Claimant has been fundamentally dishonest about any of these matters.
7.3: Conclusion on fundamental dishonesty
197. I therefore do not find that the Claimant has been fundamentally dishonest on any issues that go to the heart of the claim in the sense described in Jenkinson at [25]. The issue of “substantial injustice” does not therefore arise.