In Michael v I E & D Hurford Ltd (t/a Rainbow)  EWHC 2318, Mrs Justice Stacey was asked to determine an appeal from the finding at first instance that a Claimant was not dishonest.
At first instance the Claimant brought an action for damages for personal injury. The matter went to trial where the claim was successful with the Claimant being awarded £3,624.18 but certain aspects of the claim were not allowed.
Mr Michael’s claim had various problems. Eight sessions of physiotherapy were claimed but in his evidence Mr Michaels confirmed that he had only attended one. Added to this he failed to provide disclosure of credit card statements and failed to include a second job in his Reply.
When considering whether the Claimant had been dishonest the Recorder considered that the various discrepancies in the Claimant’s evidence were explained by his lack of understanding of what was going on, and since he did not know or understand the basis of the claim the solicitors had advanced on his behalf, the Recorder could not make a finding of dishonesty.
On appeal Mrs Justice Stacey commented that the Recorder was entitled to conclude that if there had been dishonesty it was not on the part of the [claimant] and that it was also relevant to note that the troubling aspects of the heads of claim, such as the physiotherapy and credit hire claim would not be paid to the Claimant but to the solicitors for settlement of invoices.
She added that “it is too bold a submission to assert than an inaccurate pleading or defective disclosure statement is synonymous with the respondent’s fundamental dishonesty”.
“The test of recklessness is different to the test of dishonesty, even though recklessness in signing a false statement of truth, or disclosure statement may result in committal proceedings under CPR 81.18. But contempt of court is a different concept to dishonesty. There may also, of course, be cases where signing an inaccurate witness statement, statement of case or disclosure statement will be evidence of dishonesty…but it does not automatically follow. In this case the [claimant] was able to provide an honest explanation”.
Two important issues arise from this appeal:
The test under s57 Criminal Justice and Courts Act 2015 is whether the Claimant is dishonest and a dishonest claim which is not prepared by the Claimant is not necessarily the same as dishonesty by the Claimant for the purposes of s57.
In this case the Claimant was clearly unfamiliar with his witness statement. It is unfortunately often the case that solicitors will prepare documents for litigation using legal terminology which is not fully understood by the lay client. This case highlights the importance of ensuring that a witness statement is prepared in the Claimants actual words and not used to provide a commentary on the documents in the trial bundle.
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