CLAIMANT FOUND TO BE FUNDAMENTALLY DISHONEST: EXAGGERATING SYMPTOMS IS PLAINLY DISHONEST

We are returning to the judgment of HHJ Karen Walden-Smith in Hamed -v- Ministry of Justice (County Court in Cambridge – 7th June 2024). The judge found that the claimant had been fundamentally dishonest in the presentation of their symptoms.  This led to QOCS being disapplied.

A copy of the judgment is available here FINAL JUDGMENT

“Deliberate exaggeration of symptoms and functional limitations for financial gain is plainly dishonest”

THE CASE

The claimant brought an action for damages for personal injury following a fall when he fell from the top bunk when he was a serving prisoner.  Liability was admitted, subject to medical causation.  The defendant alleged that the claim was fundamentally dishonest.   The judge found that the claimant had exaggerated the symptoms and made no award for damages.  She then disapplied QOCs on the basis that the claimant had been fundamentally dishonest.

THE JUDGMENT ON FUNDAMENTAL DISHONESTY

“Fundamental Dishonesty

41. CPR 44.16 provides that orders for costs made against a claimant may be enforced to the full extent of such orders with the permission of the court where the claim is found on the balance of probabilities to be fundamentally If the court were to find that the claim as a whole is fundamentally dishonest and dismiss the claim, disapplying one way costs shifting under CPR 44.16.

42. Alternatively, the court may find the claim has been fundamentally dishonest in relation to the primary claim (or a related claim) pursuant to the provisions of section 57 of the Criminal Justice and Courts Act 2015 which provides:

“57(1) This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”)

• The court finds that the claimant is entitled to damages in respect of the claim, but
• 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 … ”

43. If found to be fundamentally dishonest under section 57 of the 2015 Act, Mr Hamed would not be entitled to recovery of any damages he would other have been entitled to recover. The test for dishonesty was restated by the Supreme Court in Ivey v Genting Casinos [2017] UKSC 67:

“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 … 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.”

44. For QOCS to be disapplied under CPR 44. 16, the dishonesty must go to the root of the whole claim or a substantial part of In Howlett v Davis [2017) EWCA Civ 1696, Newey LJ referred to the decision of HHJ Moloney KC in Gosling v Hailo (2014), in which he said:

“44_ It appears to me that this phrase in the rules has to be interpreted purposively and contextually in the light of the context. This is, of course, the determination of whether the claimant is “deserving” as Jackson LJ put it, of the protection (from the costs liability that would otherwise fall on him) extended, for reasons of social policy, by the QOCS rules. It appears to me that when one looks at the matter in that way, one sees that what the rules are doing is distinguishing between two levels of dishonesty: dishonesty in relation to the claim which is not fundamental so as to expose such a claimant to costs Iiability, and dishonesty which is fundamental so as to give rise to costs liability.

5. The corollary term to “fundamental” would be a word with some such meaning as “incidental” or “collateral”.”

45. In my judgment, Mr Hamed had exaggerated from the outset the extent of any injury to his ankle, resulting from hitting the floor from his top  bunk. The initial examination by the nurse who attended him at 22.20 on 26 March 2018 was that there was no visible sign of injury. Mr Hamed had already reported himself that day as feeling low and depressed and he had been prescribed that day anti-psychotic medication.  He was plainly not happy with being on a top bunk as he mentions that in his complaint letter and in my judgment his complaint was all part of his desire to be moved, but not a genuine or accurate record of what happened. The words said by Mr Hamed to have been said by the nurse/doctor on 28 March 2018: “l was told to fucking leave he said your nothing but a fucking prisoner and l can’t do fuck all … ” are inherently unbelievable and, in my judgment, are untrue. The complaint is made up to cover the fact that the nurse who first saw Mr Hamed could not see any injury to his ankle.   Mr Hamed needed to suggest that the nurse who saw Mr Hamed was deliberately failing to report his injury otherwise his claim was immediately underm·ined.

46. In my judgment, Mr Hamed did not sustain any additional injury to his ankle on 26 March Further, he did not suffer any injury to his shoulder or lower back. The Particulars of Claim fail to include Mr Hamed’s signature to the Statement of Truth but the claim proceeded on the basis that his ankle, shoulder and lower back had all suffered injury as a result of the fall from the bed. That was a dishonest claim and was one which was fundamentally dishonest_as it goes to the heart of the whole claim. This is not a section 57 matter as l do not find any entitlement to damages. The dishonest conduct of Mr Harned was consciously fabricating an injury to his ankle from the outset, and then further exaggerated the damage he was suffering by claiming injury to his shoulder and lower back. There is no evidence of injury on 26 March 2018 and on 10 April 2018 it is recorded that Mr Hamed was walking without crutches on boot, that he does not look in pain . As at 30 April 2018 he was reporting that he had no current major physical health issues but was concerned that he had not been given an outpatient’s appointment and·while there is indication that he had problems with his leg it is not attributed to the 26 March 2018 fall and there is nothing indicating recent further injury or injury to his shoulder or lower back.
47. Deliberate exaggeration of symptoms and functional limitations for financial gain is plainly dishonest (see Eyre J in Mantey v Ministry of Justice [2023]EWHC 761 and Cotter J in Muyepa v Ministry of Defence [2022] EWHC 2648) and, given the circumstances of this case, is fundamentally
48. As a consequence, therefore, this claim fails as medical causation is not made out and the claim is itself fundamentally dishonest so that qualified one way costs shifting (QOCS) is disapplied pursuant to the provisions of CPR 44.16.”