Judge rejects fundamental dishonesty claim from “hostile” defendant

Hunjan: Indemnity costs may be inadequate remedy for dishonest defendants

A judge has rejected a claim of fundamental dishonesty from a “hostile” defendant in a personal injury case, while accepting that there was a “degree of overstatement” by the claimant.

Her Honour Judge Hampton said hostility arose at an early stage, when the defendant changed the description of the claimant – who it used to employ as a gas engineer – slipping into a four-foot hole, where he injured his ankle, to jumping into a hole measuring two foot six, meaning it did not need shoring up.

“The trial of this case, which has proceeded over seven court days, has been characterised by contradictions throughout.

“It has also been characterised by a hostility to the claimant on the part of the defendant’s representatives and medical experts, which I find surprising in the context of modern litigation, particularly from the medical experts engaged.”

HHJ Hampton said Ashwell Maintenance admitted liability in October 2016 but at the trial, their only factual witness, who “heard but did not see the fall”, persisted with “the suggestion that the claimant jumped into the hole”.

Mr Smith was subject to a “high level of surveillance” on 18 occasions and much was made of his participation in the Channel 4 programme Selling Houses with Amanda Lamb in March and April 2014, only nine months after the accident.

HHJ Hampton said that Mr Smith could be seen in the programme “undertaking do-it-yourself and decorating activities, negotiating stairs apparently without difficulty”.

The judge went on: “However, in the course of the filming, he attended an appointment with Mr Allen, the first orthopaedic expert to report in this case, to whom he described being unable to squat or kneel and that he was struggling with stairs.”

HHJ Hampton said she found the “significant contradictions” in the claimant’s case “troubling” and the activities shown on the surveillance footage, showing him driving, walking to and from his vehicle and a local supermarket “without apparent difficulty” contrasted with his “presentation” to medical experts.

The court heard in Smith v Ashwell Maintenance that the issues for determination were the nature of the claimant’s injury, the persistence of the disability and whether there had been fundamental dishonesty.

The judge decided that Mr Smith had not engaged in fundamental dishonesty under section 57 of the Criminal Justice and Courts Act 2015. “I do not find that he has faked injury, or continuing pain, for the purpose of financial gain.

“Nevertheless I find that there has been a degree of overstatement… of the claimant’s pain and its affect upon him. I find that the claimant has engaged in this conduct in order to convince rather than to deceive.”

Even if she was wrong on this, HHJ Hampton said it would not be appropriate under the principles stated in the Fairclough Homes case to strike out the claim rather than give judgment on quantum in the ordinary way.

She highlighted last year’s High Court decision in LOCOG v Sinfield, in which the claim was struck out after the claimant fabricated receipts to support an unjustified claim for gardening services.

The claimant in this case has not been shown to have fabricated evidence to that extent, she said.

“Given that this claimant has suffered a painful injury, and that I have accepted what the claimant’s medical witnesses have told me about that, that he has been required to resist the defendant’s vigorous attempts to avoid responsibility for an accident which it was accepted at the very last moment was entirely the fault of the claimant’s employer, I find that the claimant would suffer substantial injustice if the claim were dismissed.”

On quantum, HHJ Hampton awarded Mr Smith £44,000 for general damages, over £108,000 for past loss of earnings and care, £100,000 for future loss of earnings and over £107,000 for future care, amounting, with smaller items such as a cancelled golf subscription, to a total of over £360,000.

Writing on his chambers website, the claimant’s counsel – Satinder Hunjan QC, instructed by Affinity Law – said: “Where a claim is truly fundamentally dishonest, a claimant may properly lose all his damages; equally these are serious allegations and should not be made tactically and without sound support and after properly analysing the expert evidence which being used to substantiate the same.

“Further, undoubtedly dishonesty will be deprecated by all whether it comes from the claimant or the defendants.

“If from the claimant, he may lose all his damages; if from the defendants, indemnity costs may be an inadequate remedy and consideration given to striking out of the defence and counterclaims as well as the award of penalty or higher rates of interest.”


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