Courts “more willing” to rule on fundamental dishonesty

Turton: Courts increasingly comfortable with concept of fundamental dishonesty.

There are signs that courts are more willing to make findings of fundamental dishonesty when they reject claimants’ cases, a leading defendant firm has suggested.

Weightmans said recent cases indicate that judges will make such findings on the basis of their assessment of the claimant alone, rather than needing “arduous investigation and specific pleading from the defendant”.

Jeff Turton, principal associate at Weightmans, cited two road traffic cases the firm acted in where this happened.

In Asghar v Galliford Try Plant & Another, at Sheffield County Court in October, fraud was not pleaded, but, in addition to concerns about the nature of the collision, the defendant drew the court’s attention to the Mr Asghar’s apparent involvement in undisclosed earlier accidents.

Whilst the court did not go so far as to rule that Mr Asghar had deliberately induced the collision, it did find that his account of the circumstances was so inherently different to the Galliford driver’s account, that it must follow that the claimant’s account was fundamentally dishonest.

Deputy District Judge Birkby said: “Courts frequently prefer one account to another in road traffic cases and it does not necessarily mean that the losing party has been dishonest. But here, the accounts are completely different.

“I do not think it possible for the claimant to be mistaken as to what happened. He says that [Galliford’s driver] drove into collision with the rear of his vehicle and he denies overtaking on the left. He cannot be mistaken and I have made a finding that he did overtake. So I think that points towards dishonesty.”

Then in O’Brien v Royal Mail Group Limited, a circuit judge at first instance wholly rejected the claimant’s case, but decided that he was unreliable rather than dishonest.

Her Honour Judge Beech found that the collision occurred at no more than five miles per hour and was insufficient to cause any damage to either vehicle or injury to the claimant, while his evidence that he attended hospital and his GP, and was off work for six weeks, was unsupported by evidence.

On appeal by the defendant, Mr Justice Spencer overturned the finding on fundamental dishonesty, saying: “In all the circumstances, the effect of the judge’s findings was that this was a wholly bogus claim on the part of the claimant…

“In those circumstances, in my judgment no judge in the position of HHJ Beech could have failed to find that this was a case of fundamental dishonesty. The fundamental dishonesty was, in my judgment, staring her in the face, and she failed to follow the logical conclusion of her own findings in relation to his matter.”

Writing on the Weightmans website, Mr Turton said DDJ Birkby’s approach “may indicate the increasing feasibility, for defendants, of raising fundamental dishonesty arguments irrespective of whether or not extensive other ‘fraud indicators’ are present”.

He added: “And rightly so. If fundamental dishonesty is defined as dishonesty that goes to the heart of the claim, then a lie about how the accident actually happened ought to meet that definition without question.”

Mr Turton said the cases indicated that the courts were increasingly comfortable with the concept of fundamental dishonesty.

As a result, they were moving “from a position where only arduous investigation and specific pleading from the defendant could move the court to make a finding to a place where the there is more awareness of court’s power to make a finding and a preparedness to make such findings based on the judge’s assessment of the claimant alone”.

Mr Turton added that the fact the High Court had to overturn a lower court decision showed “there is work to do”, but the signs were “encouraging”.

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