18 April 2018Print This Post

High Court: claimant who gave “misleading impression” not fundamentally dishonest

Manchester Civil Justice Centre: Issue of dishonesty is for the trial judge

A personal injury claimant who gave a “misleading impression” of his injuries was not fundamentally dishonest, the High Court has ruled.

Mrs Justice Yip said that, in finding that the man “had not established his claim for future care”, the trial judge was “not bound to find that the claimant had acted dishonestly merely in presenting such a claim”.

She said that His Honour Judge Pearce had not rejected this element of the claim because the claimant’s evidence was untruthful, but because “a proper interpretation of that evidence did not support the assessment of the care expert”.

Yip J went on: “I do not consider that the judge was wrong in not treating the failure to establish the care claim as amounting to a finding of dishonesty.

“I would go further. I would have been surprised if the judge had found that the rejection of the bulk of the future care claim in itself when set in context did support a finding of dishonesty, still less fundamental dishonesty.”

The court heard in Wright v Satellite Information Services [2018] EWHC 812 (QB) that Edward Wright sustained “nasty injuries” to his leg and was unable to return to work following an accident in 2014.

He was awarded almost £120,000 at Chester County Court in June 2017. The defendant appealed, arguing that the claimant was fundamentally dishonest and the claim should be dismissed under section 57 of the Criminal Justice and Courts Act 2015.

Yip J said HHJ Pearce in Manchester identified “real inconsistencies” in the claimant’s case, “including as to how far he was able to walk; to what extent he needed to use a walking stick and the level of pain that he suffered” and there were features in the way it was presented “giving rise to the suggestion that the claim was overstated”.

Yip J said the defendant’s application for permission to appeal was “founded on the contention that, having found that the claimant’s care claim was not established, it was wrong as a matter of law not to find fundamental dishonesty”.

She went on: “I accept that the insurers genuinely considered that there was a strong case for alleging dishonesty. They had obtained surveillance evidence which they considered showed exaggeration. They identified other inconsistencies.

“They fought this claim vigorously, as they were fully entitled to do. I have no doubt that their interpretation of the evidence led them to expect to succeed on the issue of dishonesty.”

However, the judge said that the assertion that HHJ Pearce was “bound” to find dishonesty was based on a “lack of detailed analysis of the way in which the claim was presented”.

Yip J said the schedule of loss, drawn up in 2015, amounted to £350,000. With the exception of the loss of earnings claim, the judge said it did not serve its purpose.

“It is very important that lawyers draft the schedule in such a way that the facts to which the client is attesting are clear. Failing to do so is failing in their duty both to the client and to the court.”

However, despite his concerns, Yip J said a “full analysis of all the evidence” led HHJ Pearce to conclude that the claimant had not been dishonest.

“The issue of dishonesty is akin to a jury question. In the case of a civil trial before a judge alone, it is a matter for the trial judge who has seen and heard all the evidence unless some material flaw in approach or his analysis can be identified. The judge’s approach cannot be faulted.”

Yip J concluded: “It is plain he had concerns about some of the inconsistencies and he gave them particular attention before reaching the findings that he did.

“He was entitled to find that, although at times the claimant gave a misleading impression by focusing on his symptoms when they were at their worst, he had not deliberately attempted to overstate his case.”

She dismissed the defendant’s appeal.

By Nick Hilborne

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