What constitutes fundamental dishonesty in a personal injury claim?
The Claimant was the front seat passenger in a vehicle being driven by his brother-in-law when, on 2 June 2016, the first Defendant, drove into the rear of the vehicle the Claimant occupied. Liability was admitted and so the claim was for the injury and losses alleged by the Claimant to have been suffered as a result of the accident.
At trial, the Claimant relied upon a medical report which stated that the longevity of those injuries was six months post-accident. Some weeks following the accident, the claimant was involved in a subsequent accident involving a quad bike in which he had to attend the Accident and Emergency Department due to the injuries sustained. He did not disclose this subsequent accident to the medical expert.
The Defence alleges that the Claimant had been fundamentally dishonest by exaggerating his injuries and had misled the medical expert by failing to mention pre-existing injuries. HHJ Rawlings somewhat acceded to the Defendant's submissions about the longevity of the injuries being inconsistent with the Claimant’s own evidence at trial such that no reliance could be placed upon the medical report.
HHJ Rawlings concluded that the Claimant had proved his case and that there was a genuine collision despite the Defence alleging it was a bogus claim based on a collision that never happened or was contrived. The Claimant was not found fundamentally dishonest. The Defendant appealed.
Mr Justice Martin Spencer reversed the decision of HHJ Rawlings and found a number of factors which strongly showed that the Claimant had been dishonest in his presentation of his injuries to the expert instructed and to the court, but which HHJ Rawlings failed to deal with, either adequately or, in some cases at all. These factors are as follows:
Given that Mr Justice Spencer gave a finding of fundamental dishonesty and part 44.16 could be satisfied, the Claimant lost his costs protection.
Whilst the Defendant was justified in alleging fundamental dishonesty, a significant part of the costs incurred were in relation to the allegation that this was a bogus claim. Therefore Mr Justice Spencer adjusted the full order to reflect the Defendant’s failure to prove fundamental dishonesty in that regard and ordered the Claimant to pay 70% of the Defendant’s costs, to be assessed on the indemnity basis.
The appeal was allowed.