Background

The claim arose from clinical negligence allegations concerning the treatment of the claimant following a stroke on 16^th November 2016. It was alleged that the second defendants’ stroke consultant at Norwich & Norfolk Hospital failed to offer thrombolysis, resulting in serious disability. Quantum was agreed at £1,033,824, subject to liability.

During the proceedings the defendants raised an allegation of fundamental dishonesty against the claimant contending that he had deliberately underperformed in neuropsychological and other assessments conducted by their experts. 

The Issues

The claim was dismissed but there was no evidence of fundamental dishonesty. The court was required to determine the appropriate costs order. The primary issue was whether the defendants should bear a portion of the claimant’s costs due to their unsuccessful pursuit of the fundamental dishonesty allegation. The defendants had raised this issue in their counter-schedule dated 18 March 2025, and it was maintained throughout the trial despite the evidence becoming “increasingly wanting.”

The court also had to consider the general principle that costs follow the event, given the claim’s dismissal, and whether any order for costs payable by the claimant should be subject to enforcement restrictions.

Held

The court held that, while the claimant was liable for the defendants’ costs as the unsuccessful party, the defendants’ failure to establish fundamental dishonesty warranted a partial costs order of 15% in the claimant’s favour, from the date the dishonesty plea was raised.

The court also ordered that the claimant pay the defendants’ costs of the action,

Comment

It can be seen that s57 of the Criminal Justice and Courts Act 2015 remains a potent but high-risk defence tool with allegations of dishonesty needing to be robust. This is a reminder that alleging dishonestly is not free of costs nor consequence.

See Copy of the Judgement here:

https://www.bailii.org/ew/cases/EWHC/KB/2025/2597.html

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