FUNDAMENTAL DISHONESTY: “SUBSTANTIAL INJUSTICE” CONSIDERED IN DETAIL: HIGH COURT DECISION TODAY

In the judgment given today in Williams-Henry v Associated British Ports Holdings Ltd [2024] EWHC 806 (KB)  Mr Justice Ritchie dismissed the claimant’s claim as being fundamentally dishonest.  The judgment contains a detailed consideration of the issues relating to the “substantial injustice” provisions of s.57  The claimant was allowed some mitigation in that she was not ordered to repay interim payments. However the substantial injustice exception was not otherwise applied and the claim dismissed on the basis of fundamental dishonesty. The claimant lost a substantial sum (£596,704) in damages.

“On balance, I do not find that it would be a substantial injustice to dismiss the claim. I know it looks like a large sum of money to deprive a genuinely injured person of, but by drafting and passing S.57 Parliament sought to stamp out dishonesty which is fundamental in personal injury claims and the Claimant has breached this law.”

THE CASE

The claimant brought an action for damages for personal injury following a fall at a pier. An agreement had been reached as to liability. The major issue at trial was whether the claimant had been fundamentally dishonest. The trial lasted 11 days.

The claimant put her case at £3.5 million (on full liability; the defendant’s case was that damages were in the £370,000 – £552,000 region (again on full liability).

The judge awarded damages of £895,011 (on full liability), £596,704 after the deduction of the agreed contributory negligence.

THE FINDING OF FUNDAMENTAL DISHONESTY

1. 1. I should clarify that I used “should” not “must” in the pleading ruling. Subsequent authorities have polished the pleading point. S.57 can be raised late in the day, even if there is no pleading, if it has reasonably only arisen late. In this case the assertions of fundamental dishonesty were set out clearly in the Defendant’s counter schedule. The burden of proof lay on the Defendant and I consider that it has been satisfied by the Defendant in relation to the specific findings of the lies I have set out above. Those covered conscious gross exaggeration and fabrication of the true duration and/or extent inter alia of: (1) her left sided hearing loss, (2) her disability when walking, (3) her noise intolerance, (4) her dizziness and balance issues, (5) her fatigue, (6) her lack of spatial awareness, (7) her ankle pain and range of movement, (8) her left sided hand grip and alleged weakness, (9) her cognitive disability, (10) her memory and cognitive functioning, (11) her light intolerance, (12) her back of head pain, (13) her ability to shower alone, (14) her foreign travel, (16) her ability to socialise and her consumption of alcohol, (17) her ability to drive long distances, (18) her need for help with ADL, (19) her headaches. Overall, I find that the Claimant has presented her function and disabilities to clinicians, medico-legal experts and the Court dishonestly. The effects of this dishonesty on the claim have been substantial and fundamental. It has led to the experts instructed on her behalf making recommendations for care and case management in the past and in future which were and are far in excess of her actual needs caused by the accident. The claim for care was pitched at around £1 million. Some experts recommended care and therapies for life. The dishonesty has led to the cost of surveillance, multiple supplementary medical reports, disclosure applications and the need for a 2-week trial. It has substantially affected the presentation and preparation of both the claim and the defence. I consider that in law these matters are fundamental to the claim.

1. I consider that the lies in the L&G insurance form and the DWP applications were collateral, so were not fundamental, to the claim, but they proved to my satisfaction that the Claimant was a regular liar when financial benefit to her was the objective. As a result, the claim must be dismissed under S.57 unless I am satisfied that the Claimant would suffer substantial injustice (SI) if the claim were dismissed. So, what does that mean?

SUBSTANTIAL INJUSTICE CONSIDERED

Substantial injustice

1. 1. In London Organising Committee of the Olympic and Para Olympic Games v Sinfield [2018] EWHC 51, (LOCOG) Knowles J. ruled as follows.

“65. Given the infinite variety of circumstances which might arise, I prefer not to try and be prescriptive as to what sort of facts might satisfy the test of substantial injustice. However, it seems to me plain 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.”

1. 1. In Woodger v Hallas [2022] EWHC 1561 (QB), at para 49, Knowles J. stated:

“49. Counsel on this appeal were unable to refer me to any case which has defined the meaning of ‘substantial injustice’. I was not wholly surprised by that. To paraphrase US Supreme Court Justice Potter Stewart in Jacobellis v Ohio 378 US 184, 197 (1964), county court judges will generally, ‘know it when they see it’.

1. 1. The principle to be applied is that fundamental dishonesty will result in the Claimant losing her genuine damages. This penalty is intended by Parliament. So, the starting point is that a dishonest claimant is not suffering an injustice per se by being deprived of his/her genuine damages. Once fundamental dishonesty has been found by the Judge then the Court must consider whether the dismissal will cause SI. However, trying to identify whether dismissing a claim for damages with a properly assessed genuine quantum of say £600,000 would cause any or even a substantial injustice to a claimant, whilst ignoring the very dismissal which is the only operative cause of any potential injustice, is imposing a blindfold on the Judge which the Act itself does not impose. I do not understand how a Judge will know injustice when she/he sees it, with the blindfold put on. If that is what Knowles J. was saying then I respectfully do not agree with his ruling on the interpretation of SI. The plain words of the Act tie the responsibility to assess any resulting SI to the dismissal of the claim. In my judgment it is the dismissal of the claim for damages that is the trigger for the analysis of whether a substantial injustice will occur if no damages are awarded. One cannot ignore the very thing which S.57(3) takes away when considering the injustice of the taking away. I accept, of course, that the aim of the section is to punish dishonesty by the dismissal of the claim. But this is tempered by Parliament’s inclusion of S.57(2). This section gives the Judge discretion which, is to be exercised fairly and only if a threshold with two parts is reached. Part one is a finding of injustice to the Claimant. Part two is a finding that the injustice is substantial.

1. 1. I consider that the correct approach when deciding whether a substantial injustice arises is to balance all of the facts, factors and circumstances of the case to reach a conclusion about SI. The relevant factors in my judgment are all of the circumstances and include:

(1) The amount claimed when compared with the amount awarded. If the dishonest damages claimed were small or moderate compared to the size of the assessed genuine damages which were substantial or very substantial this will weigh more heavily in favour of an SI ruling.

(2) The scope and depth of that dishonesty found to have been deployed by the claimant. Widespread and gross dishonesty being more weighty against SI than moderate or minor dishonesty.

(3) The effect of the dishonesty on the construction of the claim by the claimant and the destruction/defence of the claim by the defendant. This would be measured by considering all matters including the costs consequences of the work done in relation to the dishonesty compared with the work done had there been no dishonesty.

(4) The scope and level of the claimant’s assessed genuine disability caused by the defendant. If the claimant is very seriously brain injured or spinally injured, then depriving the claimant of damages would transfer the cost of care to the NHS, social services and the taxpayer generally and that would be more unjust than if the claimant had, for instance, a mild or moderate whiplash injury. The insurer of the defendant (if there is one) has taken a premium for the cover provided. Why should the taxpayer carry the cost?

(5) The nature and culpability of the defendant’s tort. Brutal long term sexual abuse, intentional assault or drug fuelled, dangerous driving being more culpable than mere momentary inadvertence.

(6) The Court should consider what the Court would do in relation to costs if the claim is not dismissed. The Judge should ask: will the Court award most of the trial and/or pre-trial costs to the defendant in any event because fundamental dishonesty has been proven? Also, will the claimant have to pay some or all of his/her own lawyers’ costs out of damages if the claim is not dismissed? These both aim towards answering the question: “what damages will be left for the claimant after costs awards, costs liabilities and adverse costs insurance premiums are satisfied?” If the genuine damages to be received by the claimant will be substantially reduced or eradicated by the adverse costs awards, then it is less likely that SI will be caused by the dismissal.

(7) Has the defendant made interim payments, how large are these and will the claimant be able to afford to pay them back?

(8) Finally, what effect will dismissing the claim have on the claimant’s life. Will she lose her house? Will she have to live on benefits, being unable to work?

SUBSTANTIAL INJUSTICE ON THE FACTS OF THIS CASE

1. 1. I have set out above, at length, how I have found the Claimant to have been fundamentally dishonest in her claim. In relation to substantial injustice (SI), the evidence served by the Claimant from herself, Doctor Marshall and the Claimant’s mother was to the effect that if I find fundamental dishonesty the Claimant will commit suicide. This was sworn to in two witness statements dated March 2024 and one expert’s witness statement. No witness was cross examined on these statements other than Miss. Williams on the financial aspects of an SI finding. The contents of the SI witness statements were not agreed. The Claimant asserted she would do so because she would not be able to pay for the MDT therapy she asserts she needs or to repay the interim payment of £75,000. Doctor Marshall asserted that the NHS would not provide the same level of care to the Claimant as private services would. He asserted that the Claimant’s mental health deteriorated after July 2023 (when the videos were served). He warned that the Claimant was developing psychotic symptoms in December 2023. He advised that there is a significant risk of the Claimant succeeding in committing suicide. He will put in place measures to prevent that happening with her GP, which may include admission to a mental hospital. When the draft of this judgment is handed down to counsel for correction of typing errors, these safety measures should be triggered.

1. 1. Whilst this evidence is deeply troubling, the focus of the Claimant’s witness statement was the money. The focus of Doctor Marshall’s was what he called the Claimant’s alleged core values of honesty and the risk of her injuring herself. I take into account that the Claimant has never attempted suicide. I consider that I cannot take into account the threat of or the risk of suicide when making the decision on fundamental dishonesty. However, I do consider that these are relevant to the SI issue.

1. 1. For the decision on SI I shall take each relevant factor in turn. (1) The amount claimed when compared with the amount awarded. The Claimant sought £2.5 million and recovered just under £600,000. The difference is not outside the usual bounds of claims and awards in personal injury claims, however the dishonest parts of the claim inflated the damages sought by over £1 million. (2) The scope and depth of the dishonesty found to have been deployed by the Claimant. The scope of the Claimant’s untruths was wide. They related to her asserted pain, her ADL, her social life, her physical disabilities and her mental disabilities. The level of dishonesty was high in my judgment and was for financial gain. The Claimant told ancillary untruths to the DWP and the life insurer L&G for financial gain alongside her many fundamental untruths to this Court, her treating clinicians and the experts. (3) The effect of the dishonesty on the construction of the claim by the Claimant and the destruction/defence of the claim by the Defendant. I consider that the Claimant’s dishonesty had a very substantial effect on the trial, on the preparation for the trial and on the evidence relating to the claims for case management, care, therapies, loss of earnings and the figure for pain and suffering and loss of amenity. It also led to many more experts’ reports. (4) The scope and level of the Claimant’s assessed genuine disability caused by the Defendant. The Claimant is moderately severely brain injured but has made a very good physical and cognitive recovery. Depriving the Claimant of damages will not transfer much, if any, cost of care to the NHS, social services and the taxpayer generally. In my judgment she can work and live independently. (5) The nature and culpability of the Defendant’s tort. The Defendant’s tort was at the lower end of the culpability scale. The pier had stood in the state it was in for years with no previous accidents. (6) The Court should consider what the Court would do in relation to costs if the claim is not dismissed. If I were to find SI, I would almost certainly award the trial and pre-trial costs to the Defendant in any event because fundamental dishonesty has been proven. These costs may be very substantial considering the size of the Defendant’s costs budget. I have, of course, not seen any Part 36 offers, but the fundamental dishonesty will have an overarching effect on the costs orders which usually flow from Part 36 offers. The Claimant would most likely have to pay some of her own lawyers’ base costs and success fees out of damages if the claim is not dismissed because of my probable adverse costs orders against her. What damages will be left for the Claimant after adverse costs awards, her own lawyers’ costs and insurance premiums are satisfied? Will her adverse costs insurance cover fundamental dishonesty? I doubt it, but have not been shown any policy. In my estimation the genuine damages to be received by the Claimant will be reduced (or potentially eradicated) by the adverse costs orders and the standard terms of her own CFA (which I have not seen but which usually entitle the lawyers to recover their costs on recovery of any sum in damages). It would have assisted the Court if I had been shown the CFA and the adverse costs insurance policy for the SI issue. (7) Finally, what effect will dismissing the claim have on the Claimant’s life. I am unsure what the effect will be on the Claimant’s life. I consider that she is capable of work, physically and mentally, from the perspective of the injuries caused by the Defendant. I take into account the evidence of the Claimant’s suicidal ideation. I consider that the Claimant’s current unstable state of mental health has been caused by her own dishonesty. The advice she received to take a sabbatical and later, to give up work, was likewise so caused. The Claimant was in work until October 2022. In my judgment her stopping work was not caused by the tort. I am unclear whether the dismissal of the claim will lead to the Claimant being unable to repay her mortgage. She paid part of it off out of the £108,000 she received from an insurance policy after the fall. She should be able to afford the reduced mortgage repayments if she gets back to work. She has minimal savings.

1. 1. I consider that requiring the Claimant to repay the £75,000 of interim payments could, when combined with dismissal of the claim, be an injustice to the Claimant because she would then be homeless, jobless, depressed and suicidal. In closing submissions the Defendant pointed out that this Court could refuse to order repayment of the interim payments under CPR Part 25. No application for a repayment order was made by the Defendant. I consider that the interim payments should not be repaid because that would probably mean that the Claimant would lose her home. On the basis that the interim payments are not to be repaid, I can now balance the remaining factors. This Claimant maintained before trial, in open Court and in her last served witness statement, that she had never lied during this claim. I take into account the wide scope and considerable depth of the Claimant’s fundamental dishonesty in the claim, compared to the low level of culpability of the Defendant (the Defendant company was also only 2/3rds to blame on liability). I take into account the large sums which would be taken out of the Claimant’s damages by adverse costs orders if damages are awarded. I further take into account the excellent recovery which the Claimant made from the injuries with high quality NHS treatment both at hospital and for years afterwards. On balance, I do not find that it would be a substantial injustice to dismiss the claim. I know it looks like a large sum of money to deprive a genuinely injured person of, but by drafting and passing S.57 Parliament sought to stamp out dishonesty which is fundamental in personal injury claims and the Claimant has breached this law. Finally, I take into account that the Claimant was wholly unrepentant when she gave evidence and had sought, in parallel, to defraud the DWP and L&G insurance about her disabilities.

1. The claim is dismissed.