Balancing the prejudice: pursuing fundamental dishonesty without the defendant
Lord v Davies [04.05.18]
The court has awarded costs on the basis of fundamental dishonesty in a discontinued case, despite the defendant being unable to give evidence at trial due to illness. Lord v Davies highlights the usefulness of actively pleading dishonesty and how the courts value evidence.
The claimant alleged that she had been injured whilst assisting the defendant who had fallen in the shower in 2013. The defendant had Multiple Sclerosis (MS) and the claimant was employed by the defendant as a home help to provide basic support, such as preparing breakfast. The defendant denied the incident took place and made a positive pleading of fraud.
A week before trial, the claimant served a notice of discontinuance of the claim, prompting the defendant to issue an application for costs on the basis of fundamental dishonesty. During the application hearing, an apparent conflict of interest emerged between the claimant and her solicitors over the reasons for the discontinuance. The claimant’s barrister was under instructions that the matter was discontinued due to the merits of the case. The claimant’s evidence had been that she was unwell (and had herself now been diagnosed with MS).
In light of this, the claimant was directed to file further evidence to support the discontinuance. The defendant specifically requested medical evidence to support the alleged medical diagnosis of MS, and invited the claimant to waive legal privilege in relation to attendance notes taken around the time that the notice of discontinuance was prepared and filed. The claimant failed to serve any further evidence, nor did she waive privilege.
Sitting in Aberystwyth County Court, District Judge Godwin was satisfied the claimant was fundamentally dishonest in bringing her claim. He held that her dishonesty went “to the root of the entire claim which falls-down… in every respect when placed under the spotlight of scrutiny.”
Godwin J disapplied QOCS protection pursuant to CPR 44.16(1) and the claimant was ordered to pay the defendants costs on the indemnity basis. This was despite the claimant arguing that the defendant’s case was flawed by the fact the court heard no oral evidence from the defendant. What the court found of greater value was the lack of evidence provided by the claimant in response to the defendant’s application. The judge went on to say that “...the most telling evidence was the lack of any cogent contemporaneous evidence of the claimant reporting the alleged incident or seeking help…”
This particular case and its finding of fundamental dishonesty is one that was obtained despite no oral evidence from the defendant, and despite the claimant arguing that the inability to cross-examine the defendant prejudiced her case. The defendant in this matter was too ill to provide oral evidence. This is a clear indication that the courts are willing to balance the ability of a vulnerable defendant with that of any potential prejudice to a claimant. Whilst the defendant could not attend the hearing, of more importance to the court was the lack of cogent contemporaneous evidence and lack of any consistency in relation to the alleged incident. The court considered this outweighed any potential prejudice to the claimant. Certainly the fact the claimant failed to provide evidence was a significant contributing factor in the court believing her case to be fundamentally dishonesty.
This case supports the fact that where a defence of fraud is pleaded, cases should not automatically be settled where there is a legitimate explanation for a defendant being unable to provide oral evidence. Each case must be looked at on an individual basis and by considering all the evidence of both parties.
Kennedys acted on behalf of the defendant.