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Dishonesty “doesn’t need to persist” to be fundamental

Crash: Car was not a write-off after all

A recorder was wrong to find that a personal injury claimant was not fundamentally dishonest because he did not persist with his dishonesty, the High Court has decided.

Though it was not disputed that the accident occurred – with Jason Roberts awarded general damages of £4,400 – it was his failed claim for the cost of the car that led to questions about his honesty.

Mr Roberts originally said his Mercedes E250 was a write-off – leading to a claim for £10,400 – but when the defendant’s insurer, Tesco Underwriting, found that it had not been, a second witness statement said the first had been accurate “save for [this] one small detail”.

But in Roberts v Kesson & Anor [2020] EWHC 521 (QB) [1], Mr Justice Jay noted that the second statement was not clear on what actually happened to the car.

He said: “In a situation where credibility was plainly in issue, it seems to me that the claimant should have been advised to give as much disclosure as possible. On the other hand, there may have been a reason for the paucity of the evidence the claimant had available – that it simply did not exist.”

Jay J observed that, during cross-examination, “after some initial equivocation if not prevarication the claimant did accept that his first witness statement was untrue”. But he did not do so as the outset of his evidence when invited by his counsel to confirm the truth of both his witness statements.

In what Jay J described as a “rather brief” ruling, Mr Recorder Kelbrick said: “It is right that [the claimant] has accepted that he was dishonest in part when making his first statement, but I do observe that he did not persist with that dishonesty.

“Whether or not was because he had been, to use [defence counsel’s] words ‘flushed out’ or whether it was not, nevertheless he did not persist with it, and did not persist with it in oral cross examination today.”

Jay J said: “That is the closest that the recorder comes to addressing the issue of fundamental dishonesty. What I think he is saying is that there was some dishonesty but it could not be regarded as material because the claimant did not persist with it.”

The recorder rejected the claim for £10,400 on the basis that there was not enough evidence in support of it but Jay J said he failed to address the issue of fundamental dishonesty properly, given that it was “at the forefront” of the insurer’s case.

Jay J continued: “The real question is whether the claimant has been fundamentally dishonest and not whether he has persisted in that dishonesty.

“In my judgment, the only permissible conclusion on all the available evidence is that the claimant has been fundamentally dishonest in advancing a false claim in the schedule of loss and a false claim in his first witness statement.

“No proper explanation has been given for those falsities and, in my judgment, none could possibly exist…

“I do not agree with the recorder that the correct test is one of persistence in the dishonesty because that does not reflect the language of section 57(1)(b) [of the Criminal Justice and Courts Act 2015].

“In any case, the recorder rather ducked the issue of whether the claimant did persist in his dishonesty in this sense. He made no finding as to whether the claimant had been ‘flushed out’.

“I must say that in my judgment the only reasonable inference in all the circumstances is that the claimant would have persisted in his false claim had the insurers not called him out.”

The final question then was whether the dishonesty was fundamental.

Jay J said: “In my view, what is required is a global assessment in the light of the claim as advanced in its entirety, but also in view of the saliency and importance of the particular claim under consideration…

“I am satisfied that the dishonesty here did go to the root of the claim and was fundamental. The claim was not minor or peripheral.

“It was the policy of Parliament in enacting section 57 that even in circumstances where other claims may be valid, if a party advances a claim which is dishonest and it is significant and substantial, the court should not be slow to find that the stringent criterion of section 57 has been fulfilled.”