Fundamental dishonesty – when a claim has to fail
Judge v NBTY Europe Limited [15.07.20]
This case review was authored by Zachary Hilton, Litigation Executive, Manchester.
In this case, the claimant’s personal injury claim in excess of £50,000 was dismissed in its entirety, despite liability being admitted under Section 57 of the Criminal Justice and Courts Act 2015. Qualified one-way cost shifting (QOCS) was disapplied and the claimant was ordered to pay the defendant’s costs, minus the damages she would have received but for her dishonesty, as well as a previous indemnity costs order from 2018.
Kennedys acted for the defendant.
The claimant was employed as an Assistant Store Manager by the defendant (trading as Holland & Barratt). On 3 April 2014 the claimant was struck on the head by the lid of a storage case in the stockroom whilst retrieving a box of small bags. Liability for the accident was admitted and the claimant obtained default judgment against the defendant.
The claimant’s case was that the accident caused her anxiety to become considerably worse and as a result, she was unable to work after being constructively dismissed by the defendant a few months post-accident. The claimant submitted two Schedules of Loss seeking to claim £45,000 for past loss earnings plus £8,652 for future loss of earnings up to July 2019.
The defendant accepted that the medical evidence supported a claim of between a few weeks’ and up to six months’ worth of injury, but it was denied that the accident caused any medically recognised psychiatric disorder or prevented the claimant from working after six months post-accident.
The defendant pleaded in its Counter-Schedule that the claimant had been fundamentally dishonest in her presentation of the claim, in particular her lost earnings claim.
The judge noted that this should have been a low level fast-track trial for personal injury and modest loss of earnings. This was not the claim he heard. Instead, the claim had been allocated to the multi-track based on the pleaded lost earnings claim in excess of £50,000.
The judge noted that it was quite clear that the claimant had battled anxiety before and after the accident but he held that the claimant’s failure to be open and honest with the experts about her mental health history led to a higher value claim being pursued.
On the claimant’s employment, the judge held that the claimant had recorded her lost earnings claim in a “fanciful” way and it was “quite clear that she did have a number of opportunities to earn money”.
The judge observed that he had “huge sympathy”, however concluded that the claimant had been fundamentally dishonesty and that the claim had to fail. The judge added that at best, the claimant may have “recovered maybe £3,000 or for personal injury may have recovered a couple of months of loss of earnings but having pursued the claim as she has, it fails through it been having brought on the back of a fundamentally dishonest presentation.”
The claimant had pursued and maintained claims for injury and loss of earnings that were either not supported or simply dishonest.
Instead of seeking a reduced settlement of the claim, which would still have resulted in the claimant receiving some damages and costs, the decision to defend the claim on the basis of fundamental dishonesty resulted not only in no award for damages or costs but also the defendant being able to pursue its costs in full from the claimant.