A personal injury claimant cannot escape a fundamental dishonesty hearing by serving a notice of discontinuance, a circuit judge has held.
HHJ Gosnell said the new regime of qualified one-way costs shifting (QOCS) had not changed a much older rule that the service of a notice of discontinuance “is not the end of the matter for a claimant”.
He went on: “If a defendant thinks they can satisfy a court on balance of probability the claim is fundamentally dishonest, they can ask the court to direct that an issue arising out of that allegation be determined.
“I think it must be right that where the claimant does not give evidence or does not proffer any reason for the decision to discontinue, then the defendant can invite the court to draw an adverse inference.”
However, HHJ Gosnell also said he was not prepared for the claimant to be “condemned as being dishonest on paper”, and a hearing was necessary.
Ruling in Rouse v Aviva (claim no.A28YP882 ) at Bradford County Court, the judge said the case involved two “mature gentlemen” who claimed one of them was injured after their car was hit by a bird cage falling out of a Ford Focus in front of them.
“He suffered soft tissue injuries as a result which, I think, occupied him for about four months. The defendant perhaps understandably took a fairly jaundiced view of this claim given the circumstances and investigated it fully.
“Not only did the driver of the Ford Focus which the defendant insured give a statement that the birdcage had not fallen off his vehicle nor had any constituent parts fallen off it but also that he was prepared to argue that a friend had followed him to the auction he was travelling to and that, therefore, the claimant could not have been behind his vehicle at the relevant time.”
HHJ Gosnell said the claimant discontinued his claim two or three days before the trial, and the defendant applied to the court for a finding of fundamental dishonesty under CPR 44.16.
Overturning a ruling by District Judge Edwards that there should be a “paper consideration only”, HHJ Gosnell accepted his concern about “disproportionate costs”.
The circuit judge went on: “Any judge is going to be reluctant to encourage satellite litigation and disproportionate costs. Judges are quite familiar with having to do this when dealing with cases of misconduct under CPR 44.11 or dealing with issues such as applications against non-parties and wasted costs orders.
“It is a position that courts are very familiar with. There is an understandable reluctance to have additional costs incurred unless they are absolutely necessary.
“The reason I think they are necessary in this case and actually would be necessary in other similar cases is, strangely, not because it is fair to the defendants, it is actually because it is only fair to the claimant.”
The judge said the claimant was entitled to the opportunity to “convince the court that what may appear the case from the paperwork” was inaccurate.
“In this case we have two mature gentlemen, not the most likely fraudsters I have to say, but it may be that they could explain, for example, that even if the bird cage had not hit the car, something else hit the car which they thought was a bird cage.”
HHJ Gosnell concluded that it was within the court’s discretion to decide which procedure should be used to determine the issues.
“If it could only be done on paper I would have expected the rules to say so. Therefore, for the reasons that I indicate, in general terms, the court has the option how to adopt this procedure whether in writing, whether with a limited inquiry or whether with a full trial.
“In the particular facts of this case, it seems to me that either a full trial or a limited inquiry at least giving the claimant and his witness the opportunity to give evidence is the right and fair way to move forward”.
He granted the defendant’s appeal against the district judge’s ruling.