Traditionally with RTA claims in England and Wales where there has been a clearly heavy impact, claimants have had little trouble proving their injuries. However the law, developed over the past few years surrounding fundamental dishonesty, has been a proverbial game-changer.
The application of Section 57 CJCA 2015 has continued to evolve when it comes to fundamental dishonesty in personal injury claims, with judges approaching such claims with a degree of caution, if not suspicion. However, it is worth remembering that the older settled law remains to capture those claims which S57 CJCA does not apply to.
Summers & Fairclough Homes Ltd [2012] UKSC 26 remains the leading authority for the court’s ability to strike out a genuine claim which is found to be tainted by fraud, although the threshold for this is high.
In two recent decisions we have secured dismissal of the personal injury claims, for findings of fundamental dishonesty, despite the judge finding that the claimant was injured following a sizeable collision. The outcome of these cases serve as a reminder that Section 57 CJCA 2015 is not the only route to a dismissal of a claim with a fundamental dishonesty finding.
Spoiler: dishonestly exaggerating any part of a personal injury claim or related claim can lead to a claimant being found to be fundamentally dishonest.
Case study
Background
The claim in question arose out of a road traffic accident on the M1. The Mercedes in which the claimant was a passenger was effectively sideswiped by an HGV. The Mercedes driver lost control and struck the central reservation head on, with photographs showing a moderately severe frontal impact.
The concerns
The concerns, most of which were held previously but some of which manifested themselves more clearly during the trial, were as follows:
- The claimant attended A&E the day after the accident yet the only positive finding was chest tenderness with deep breathing; there was no reference to any other alleged accident-related symptoms.
- The medical expert confirmed the claimant was accompanied by his sister, with the claimant stating he was not. It was highly unlikely the doctor would have been mistaken and this pointed to the claimant being a poor historian.
- The claimant told the expert he had sought physiotherapy when this was not the case.
- The injuries did not prevent the claimant continuing in his heavy manual job.
- The claimant alleged in court that he had injured his left shoulder by banging it on the door, yet had not reported this previously.
- At trial the claimant launched a verbal attack on the doctor whom he suggested had not examined him properly, despite the full record of an examination.
- He subsequently suggested his symptoms only came about two-three days later, which was wholly inconsistent with what he reported to his expert.
- The claimant alleged back injury, which was not mentioned in A&E or to his expert.
What did the judge decide?
The first question the judge asked was whether the claimant sustained some injury. He found that the claimant did most likely suffer symptoms in his chest and probably some tenderness to his trapezius, yet the claimant’s account was found to be “hopelessly inconstant and contradictory”, with his evidence as to resolution of symptoms considered “deeply unsatisfactory”.
The judge therefore refused to accept the claimant’s evidence as being reliable, was unable to make any findings as to the nature and extent of the injury to be compensated, and as such the claim was dismissed. Section 57 CJCA 2015 did not apply as the claimant’s dishonesty was in relation to the personal injury claim itself and not a “related claim” as defined in the Act.
The next question was whether QOCS should be set aside under Part 44.16 of the Civil Procedure Rules 1998 (the fundamental dishonesty exception). The inconsistencies were to do with the claimant being a poor historian, or more the sign of dishonesty going to a substantial part of the claim, as described by HHJ Moloney in Gosling v Screwfix Direct (2014) Cambridge CC.
The judge found that the claimant was dishonest in the way he presented the history, and that he had “deliberately and knowingly exaggerated his claim in a way going to the root of the action”. Applying Gosling, the dishonesty related to large part of the claimant’s personal injury claim, which clearly went to the root of the action. A finding of fundamental dishonesty was the outcome, with the claimant ordered to pay our client’s costs in the sum of £5,854.
The judge also referenced the following paragraph in Molodi v Cambridge Vibration Service [2018] EWHC 1288 (QB):
| “...The problem of fraudulent and exaggerated whiplash claims is well recognised and should, in my judgment, cause judges in the County Court to approach such claims with a degree of caution, if not suspicion. … Of course, I recognise that claimants will sometimes make errors or forget relevant matters and that 100% consistency and recall cannot reasonably be expected. However, the courts are entitled to expect a measure of consistency and certainly, in any case where a claimant can be demonstrated to have been untruthful or where a claimant's account has been so hopelessly inconsistent or contradictory or demonstrably untrue that their evidence cannot be promoted as having been reliable, the court should be reluctant to accept that the claim is genuine or, at least, deserving of an award of damages.” |
In other words, inconsistencies cannot necessarily be put down solely to poor recollection of events and in this case, as with Molodi, the likelihood of some injury being caused did not prevent the claim being found to be fundamentally dishonest. This was notwithstanding the heavy nature of the impact (unlike in Molodi, where the defendant perceived the impact to be minor).
Many fundamental dishonesty findings have their roots in section 57 of the Criminal Justice and Courts Act 2015; where the court finds that a claimant is entitled to damages, but that the claimant has been fundamentally dishonest in relation to “the primary or a related claim”, it must dismiss the entire claim unless the claimant would suffer substantial injustice.
Yet in terms of this case, whilst there was no “related claim” as such, the judge still went further than simply finding that the claimant failed to prove his injuries – he was able to dismiss the claim whilst also making a fundamental dishonesty finding under CPR Part 44.16. The advantage of this outcome is that the defendant’s costs are not reduced by any genuine value of the claim.
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