“GOOD DAYS AND BAD DAYS”: FINDINGS OF FUNDAMENTAL DISHONESTY AT TRIAL – AN EXAMPLE

Last month I reviewed the judgment  of Mr Justice Birss in  Grant -v- Newport City Council [2018] EWHC 3813. In that case the judge allowed the defendant to adduce surveillance evidence, even though it was adduced late.  I am grateful to Mark Rogers from Travellers Insurance     for sending me a copy of the subsequent judgment at trial of Her Honour Judge Howells, a judgment given on the 18th December 2019.   It is a claim where an honest claimant would have recovered £83,000 in damages. This claimant recovered nothing.  The judgment shows the impact that the video evidence had on the trial (and remember the defendant’s late disclosure very nearly led to this evidence not being allowed at trial).

“There was a very real risk in the absence of the surveillance evidence that the defendants would approach this case on the wrong basis.”

THE CASE

The claimant sought damages following a slipping accident in the course of her work. The defendant denied liability. In addition the defendant causation and also asserted that the claimant had been fundamentally dishonest.

THE JUDGE’S REVIEW OF THE PRINCIPLES AND PRACTICAL APPLICATION OF THE RULES RELATING TO FUNDAMENTAL DISHONESTY

The judgment contains a review of the principles relating to fundamental dishonesty and how the court should apply these.

6. What is very much in dispute is the extent of recovery that the claimant has made. The claimant’s case, in essence, is that she is left disabled on the labour market and has been unable to return to work as a cleaner as a result of her injuries. She has, she says, got ongoing problems with restrict mobility and restrict independence, such that she requires care and assistance, albeit to a relatively modest level, ongoing in her home. It is her case that she cannot return to any physical work and, as a result, she pursues a claim for past loss of earnings, future loss of earnings and past and future care. The claim was originally limited to £50,000, but I note was extended to be limited to over £300,000 on the basis of medical evidence that the claimant relied upon, indicating that she was  suffering ongoing significant disabilities.

7. The defendant in this case relies upon surveillance evidence. They contend that this evidence presents a very different picture of the claimant to that which she presents to the court. They say that the presentation of the claimant in the video evidence is wholly inconsistent with the claimant’s case. They say that there can be no explanation for this other than that the claimant is fundamentally dishonest. 8. Within their amended defence it is said that the claimant is, in effect, lying. It is said that she is lying about the severity of the injuries and the ongoing effect that they have. It is said that this is conscious and serious exaggeration to the extent and the effects of the injury. It is said that the claimant has been fundamentally dishonest within the meaning of both CPR 44 and section 57 of the Criminal Justice and Courts Act 2015. In particular, it is alleged that the claimant told medical experts that she could walk outside only with the aid of a walking stick, and, in fact, mostly walked inside with a stick. It is said that this is a lie. The claimant told the medical expert that her condition was such that she was not capable of undertaking her previous work as a cleaner. It is said that this is a lie. 9. The claimant advances a claim for future loss of earnings in excess of £96,000, which is said to be substantially fraudulent. There is also a claim for future care of £80,000, which is said to be substantially fraudulent.
10. I turn to the legal position. I remind myself the burden of proving the claim is on the claimant on the balance of probabilities. She has the burden of proving that she suffered an accident whilst in the defendant’s employment and has to establish the cause of that accident. She has to establish negligence, or breach of duty, and she has to establish that she suffered injuries as a result and what those injuries are. The burden upon her to satisfy me is on the balance of probabilities.
11. The defendant has the burden of establishing any contributory negligence, again on the balance of probabilities. Further, the defendant has pleaded a case of fundamentaldishonesty. The defendant has the burden on the balance of probabilities of establishing that the claimant was dishonest. Although the standard of proof is the balance of probabilities, the evidence has to be cogent, given the significance of the issues which are pleaded.

12. Pursuant to section 57 of the Criminal Justice and Courts Act 2015, where proceedings in a claim for damages in respect for personal injury the court finds that the claimant is entitled to damages in respect of the claim; on the application of the defendants for the dismissal of the claim under this section, if the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in respect of the primary claim or a related claim, the court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.

13. The duty to dismiss the claim includes any element of the primary claim in respect of which the claimant has been found dishonest. There is then an obligation on the court to record the amount of damages that the court would have awarded in respect of the primary claim but for its dismissal. It is accepted for these purposes that section 57 of the Criminal Justice and Courts Act is applicable to the date of this accident. I note that the duty includes the dismissal of any element of the primary claim in relation to dishonesty, but it relates to dismissing the honest elements of the claim also.

14. Guidance has been given as to the appropriate approach that a trial judge should take in such an application in the case of London Organising Committee of the Olympic and Paralympic Games (in liquidation) v Haydn Sinfield, [2018] EWHC 51. Julian Knowles J there allowed an appeal and set aside a claim on the grounds of fundamental dishonesty. In that case the claimant had honestly suffered a significant injury whilst volunteering at the Olympic Games. The claimant had a two-acre garden and claimed for the work of a gardener, which he said he was unable to carry out as a result of his injuries. It became
apparent during the course of the litigation and the trial that the claimant had, in fact, fabricated invoices from a gardener. The gardener was called to give evidence and confirmed this. As a consequence, the defendant pleaded fundamental dishonesty and the trial judge found that the claimant was “with a dishonest state of mind, although this did not constitute fundamental dishonesty.”

15. I note that the question of dishonesty was considered by the Supreme Court in the case of Ivey v Genting Casinos, and this was applied by Knowles LJ in the appeal of this case. In Ivey, the court restated the common law test for dishonesty and restated that it is a subjective state of mind. The standard by which the law determines whether the state of mind is dishonest is an objective one and that if by ordinary standards a defendant’s mental state is dishonest, it is irrelevant whether the defendant themselves – or the claimant in this case – judges things by a different standard. That is the test of dishonesty which I will apply for the purpose of this case.

16. Knowles J in the case of Sinfield, sets out the court’s approach to applying section 57 at paragraph 62 onwards. I do not intend, given the length of this judgment already, to reiterate what is said there, but I would incorporate into this judgment paragraph 62, 63, 64 and 65. It is clear that the position is that section 57 was intended to be a deterrent to claimants to pursue dishonest claims, not only to claims that were dishonest in their entirety, but also, more specifically, to claims which may have honest elements in them but were dishonestly exaggerated.

17. I have set out above the test I need to apply for dishonesty, as in the Ivey’s case. In the Sinfield case it was argued that the claimant had not been dishonest because he was creating a document, the invoice, which he said reflected the true position, in part at least. However,Knowles J applied his methods to finding a fundamental dishonesty at paragraphs 84 to 87. Again, I do not intend to repeat them, but they should be read into my judgment. The trial judge had rejected the argument that this was not fundamentally dishonest because that had related only to a modest sum claimed within the claim as a whole. This was rejected as the inappropriate approach by Knowles J

THE IMPACT OF THE SURVEILLANCE EVIDENCE

The surveillance evidence was considered in detail by the judge. The claimant had been videoed for three days. The judge accepted that the video evidence was inconsistent with what the claimant had told the medical experts in particular.

53. The claimant was cross-examined at considerable length in relation to the surveillance evidence. I have to conclude that her evidence in this regard was, on the whole, unsatisfactory. There were many occasions that she did not seem to have an answer to the questions that were put to her. She confirmed that by 2016 her condition had plateaued, but there was some suggestion that there may have been some worsening of her position recently and she has been referred to a consultant. However, from 2016 to now it certainly has not got any better. She said she struggled to get round, but simply had to live with it.

60. I find it very hard to accept that a lady who has the level of disabilities that the claimant contends that she has, as presented to the medical evidence, would voluntarily over a two and half hour period carry out quite heavy cleaning duties in relation to a car and carry out difficult manoeuvres of manoeuvring wheelie bins in an unwieldy fashion up steps. Even if, as the claimant says, this was one of her very good days, I query why someone in the situation of a vulnerable knee, as the claimant have, would put herself in a position where she took about such a course of action knowing that it would cause her pain and difficulties.
61. Whilst accepting that no claimant has to put their life on hold after an injury, and it is understandable that one would want to get on with one’s normal life as best one can, it is very difficult for me to understand why this claimant, who says she has such significant problems, as she indicated to the experts, such that she had to always use a stick, would behave in the manner that she does in the video evidence, if it were genuine. I find it is not consistent with the claimant’s case as presented. The surveillance evidence is clear that on each of the three days that the claimant was videoed she was operating at a reasonable level of functioning.

63. In my judgment, the surveillance evidence does not show any overt evidence of limping by the claimant. I accept I am not an expert in this regard, but I can assess the surveillance evidence as a lay person in the light of the evidence that I have heard. What can be seen on the whole is a claimant carrying out her day to day business without any significant obvious discomfort. Whilst accepting that the video evidence is only a snapshot of the claimant on three occasions, that snapshot showed that she was operating at a relatively high level of function.

64. I am led to the inevitable conclusion that the claimant is significantly exaggerating the extent of her symptoms. I think that, and I conclude that, even recognising that the witness statement she prepared prior to the disclosure of the surveillance evidence said she did not always use a stick. However, the claimant’s case is not wholly contained in the witness evidence. A further part of her claim is how she presents to the experts and her schedules of
loss. The overall impression created of the claimant’s case, as presented prior to the surveillance evidence, was that she was of significant ongoing disability. That is not what one sees on the surveillance evidence, even taking into consideration that it was on the claimant’s good days.

YOUTUBE EVIDENCE

Youtube evidence also played a part.  There was a  video of the claimant assisting in a business.

The court was shown a Youtube video produced by the claimant’s friend (or business associate). The claimant claimed to have barely worked, the video showed the claimant being described as an assistant in the business.

74. The YouTube clip, it was accepted by Miss Burns, shows a lot of the claimant’s own items on the stall. When the claimant said that she had earned £150 over the seven years or so that she had known Miss Burns, Miss Burns said that she thought it was £150 to £200 per year. It was suggested that this did not appear to be a very good business enterprise: I agree. Miss Burns was asked why the claimant was described as her assistant on the video. Miss
Burns’ explanation that the claimant was the only one that was there I find difficult to understand because there were, of course, other people in the video. I also note that the claimant on one of the stalls in the documents is referred to as having her own business: I think it is called “For You Creations”. Miss Burns indicated that she encouraged the claimant to have a professional name, but when Miss Burns was asked about how many weddings the claimant had been to with her, she indicated it was maybe tens. That was in response to my preventing it being suggested a specific number.

ASSESSING CREDIBILITY

The judge reviewed the medical evidence and found that the video evidence had a major impact on the claimant’s credibility.

96. I have heard this evidence and weighed it up alongside the other evidence in the case. I share Mr Pemberton’s view that what is presented in the videos is entirely different from what which was presented to him. Whilst I accept the claimant’s witness statement prior to his examination did refer to good days and bad days, the claimant at no point during her examination with Mr Pemberton mentioned this: rather, she created the impression that she was walking with a stick both indoors and outdoors. She deliberately, I find, created that impression that she had a considerable disability. This is wholly inconsistent with what is seen on the surveillance evidence.

97. In my judgment, the evidence of Mr Pemberton was highly persuasive and I prefer his evidence to that of Mr Evans. Ultimately, it is a matter for me to decide whether I believe the claimant, and I think it is fair to say that I share Mr Pemberton’s incredulity in relation to the claimant’s presentation in the surveillance evidence compared to the account she gave both to him and Mr Evans of her restrictions.

FUNDAMENTAL DISHONESTY IN THE CURRENT CASE

The judge then went on to make a finding of fundamental dishonesty on several grounds. The exaggeration of the claimant’s symptoms and the failure to disclose she had been involved in a business and earning.

101. The dishonesty, I find, relates not only to the presentation, but also to the nondisclosure of her relationship with Miss Burns and the earnings that she did, in fact, make, albeit they may have been relatively modest. Does this amount to a fundamental dishonesty in relation to this claim? I find that the purpose of the claimant stating that she had such extensive ongoing symptoms was to create an impression that she was more disabled than she, in fact, was. The effect of this would have been to increase the value of her claim. It would increase the value of her general damages to the extent of her disability. It would also increase the claim for past and future care and loss of earnings.

102. I accept that the claimant does not present a claim for full loss of earnings, but she does say that she is disabled. She does not, in her schedule, say she is capable of doing any significant work as, in fact, she says in her evidence. She does not, in her schedule, set out that she, in fact, carried out work, albeit relatively modest, with Miss Burns. There was a very real risk in the absence of the surveillance evidence that the defendants would approach this case on the wrong basis. Although the claimant’s witness statement does refer to good days and bad days and not always using a stick, this was surpassed, I find, by the evidence of the experts and, particularly, what the claimant said to Mr Pemberton. The claimant was deliberately misrepresenting to the experts the level of her symptoms. That must have been done deliberately to exaggerate the value of her claim.

103. Could this have been done innocently? I reject such an assertion. My clear impression is that the claimant not only was dishonest, but that this dishonesty was fundamental to the claim. To quote the case of Sinfield, this was an overstatement by the claimant that went to the heart and root of her claim. As such, I find that the defendant has presented to me on cogent evidence and has satisfied me that the claimant, on the balance of probabilities, has been dishonest and that this was fundamental dishonesty. Having made such a finding, pursuant to sections 57 of the relevant Act, I have to consider whether the claim in its entirety should be dismissed, or whether that would create a significant injustice to the claimant

104. Having accepted that the claimant suffered real and significant injuries in this accident, I find that had she honestly presented her claim she would have been entitled to damages, and I will set out later what those would have been. However, she chose not to honestly present her claim. She pursued her claim, contending that she was significantly disabled, as set out in the medical evidence, which she voluntarily provided to the court. The fact that she loses her entitlement to honest damages is a consequence of this section: it is a consequence of her dishonesty.

105. Whilst this is a draconian step, it was made clear in the case of Sinfield that the creators of this section intended to use it to act as a deterrent to dishonest claimants who wanted to dishonestly exaggerate their claim. It is as a result of the claimant’s dishonesty that she loses her honest damages. There has been no suggestion to me that there would be any injustice in itself for section 57 not to be applied. In all of the circumstances, I dismiss the claimant’s claim in its entirety, recognising that she loses, not only the dishonestly sought damages, but her honestly sought damages too.

THE AWARD IF THE CLAIMANT HAD PRESENTED AN HONEST CASE

The judge found for the claimant on the issue of liability. She found that if an honest case had been presented the claimant would have been awarded £83,000 in damages.  However because of the dishonesty the entire claim was dismissed.