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Gamsby v Rowland

County Court at Birmingham
22 September 2015
Before Deputy District Judge Rose – 22/9/15

A claim was dismissed after it was found to be fundamentally dishonest, resulting in the Claimant being ordered to repay an interim payment made to him and the Defendant’s costs. Mark Holmes takes us through his case of Gamsby v Rowland, where the judge made a finding of fundamental dishonesty, even though fraud was not pleaded against the Claimant. As a result of the finding of fundamental dishonesty, the Defendant was permitted to enforce not only the final costs order against the Claimant but also an interim costs order, arising from the Defendant’s successful application to resile from a pre-action admission of liability. 

Background

The Claimant, Anthony Gamsby had sought damages for personal injury and a number of items of special damage following a road traffic accident on the 7 June 2013, involving a vehicle being driven by the Defendant, Vivien Rowland and a second vehicle driven by Charlotte Rothero. The Claimant’s version of events was that the Defendant had exited a side road and collided with Rothero’s vehicle pushing it into contact with his stationary parked vehicle.

DWF LLP were instructed to act on behalf of the Defendant by her insurers and defend the claim. The claim was defended on liability on the basis that there had been no collision between the Claimant’s vehicle and the Defendant’s vehicle as a result of the collision between the Defendant and Rothero. Before proceedings had been commenced, an interim payment had been made to the Claimant.

Prior to the commencement of proceedings, breach of duty had been admitted and as such an application to resile from that admission was required. The application was successful and a costs order was obtained against the Claimant after he consented to the application at the eleventh hour.  Notwithstanding the costs order obtained, the Claimant’s claim benefitted from Qualified One Way Costs Shifting and the Defendant could not immediately seek to recover those costs, unless the court made an exception to the QOCS regime.

Facts

Giving judgment, Deputy District Judge Rose held that:

  • There was no collision between Rothero’s vehicle and the Claimant’s vehicle

  • The Claimant had wilfully neglected to disclose relevant information to the medical expert which seriously undermined his credibility.

  • The vehicle inspection report for Rothero’s vehicle, showed that there was no damage to the nearside front of her vehicle and that the damage to the rear nearside damage was pre-existing.

  • On the basis of the Claimant’s evidence, it would have been highly likely for there to have been nearside frontal damage to Rothero’s vehicle, but there was none.

  • The Claimant’s witness, Akinola must have been mistaken regarding the rear nearside of Rothero’s vehicle colliding with the Claimant’s vehicle and that Rothero was in the process of parking. The Judge preferred Rothero’s evidence; that she was intending to drive straight on when the collision occurred.

  • The Judge placed a great deal of weight on a comment made by the Claimant to Rothero, which she referred to her witness statement, when he told her that he was glad his car had not been involved because there had been two children in it.  The Judge found he had no reason to disbelieve Rothero in relation to this comment. 

The Judge found that Rothero’s vehicle had not been pushed into the Claimant’s vehicle and dismissed the claim. Counsel for the Defendant then asked the Court to find that the claim was fundamentally dishonest, pursuant to CPR r.44.16, which would  enable the Defendant to enforce, with the Court’s permission, a costs order against the Claimant.

Counsel for the Claimant opposed the Application on the grounds that fundamental dishonesty had not been pleaded and had not been expressly put to the Claimant in cross examination. In response, the Judge asked Counsel for the Claimant “How do I address the fact the Mr Gamsby says that he was in a car and an impact occurred, yet I have found that this is not the case?”. The Judge concluded that that this was not a case where there could be different interpretations of the accident circumstances, nor was it a case where the Claimant could have been mistaken about how the accident had taken place.  On the basis there had been no collision, the Judge found that the claim was fundamentally dishonest. He also commented that there was related dishonesty in relation to inconsistencies in the medical evidence, but those merely went to the issue of quantum.

Following the assessment of the Defendant’s costs, Counsel for the Claimant successfully applied for permission to appeal the finding of fundamental dishonesty.

Comment

Notwithstanding the admission of liability that had been made in this case pre-litigation, the Defendant was able to resile from that admission and successfully defend the case at trial. Although fraud had not been pleaded against the Claimant, the way the evidence unfolded at trial meant that the Court could find on the balance of probabilities that it was fundamentally dishonest, and the Judge was happy to make such a finding for the purpose of CPR r.44.16, allowing the Defendant to recover their costs, including the costs of the application to resile.

Further, the court ordered the Claimant to repay an interim payment that had been made pre-litigation.

The case highlights how fundamental dishonesty can play a part in a claim that might not appear to be “fraudulent” at the outset, but where there is a strong suspicion that all is not what it seems. The case also serves as a reminder that it is possible to resile from an admissions of liability, where there is good evidence that the admission was wrongly made. Given the evidence the Defendant ultimately assembled here, it would have been wrong if the Defendant had been unable to defend the case.

Contact

For further information please contact Mark Holmes, Senior Solicitor on 0151 907 3439.

By Mark Holmes

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