Second High Court decision shows increasing importance of fundamental dishonesty
Razumas v Ministry of Justice
High Court (QBD)
12 February 2018
Stratos Gatzouris reviews the recent decision in Razumas v Ministry of Justice (2018), in which the High Court has followed January's decision in London Organising Committee of the Olympic and Paralympic Games Sinfield (2018) on the concept and definition of 'fundamental dishonesty' in relation to section 57 of the Criminal Justice and Courts Act 2015.
This decision follows very soon after the decision in LOCOG (see DWF update) where the court had further sought to define fundamental dishonesty within the context of section 57 by stating that in order for the defendant to prove fundamental dishonesty on the part of the claimant, the defendant would have to prove on a balance of probabilities that :
the claimant had acted dishonestly in relation to the primary claim or a related claim;
by doing so he had substantially affected the presentation of his case, either in respect of liability or quantum;
and that he had done so in a way which potentially had adversely affected the defendant in a significant way, judged in the context of the particular facts of the case
This decision in Razumas came in what was primarily a clinical negligence case but its finding of fundamental dishonesty was derived from the application of the test provided in the LOCOG case.
The critical period was 2010-2013 during which time the claimant had spent varying periods in prison. He developed a sarcoma in his left leg whilst he had been in one prison and a letter advising that an MRI scan was required as this was potentially malignant was sent to the prison from which he had recently been released on licence. The claimant did not hear of this letter.
He was subsequently detained at various prisons and saw a number of doctors but only in 2013 was a cancerous tumour detected following a biopsy and an above knee amputation became necessary. Thereafter he had developed a cancerous lump in his left shoulder and he now had a 70% chance of developing further metastases.
It was common ground that the medical care was deficient in varying respects. The claimant was unable to establish exactly who was at fault (as he had been treated by various private entities as well as the NHS) and chose to sue the MOJ for personal injury arising from clinical negligence on the basis that it owed him a duty of care as a prisoner (it being noted that the MOJ had taken over the functions of the Home Office in this area).
One of the issues raised by the claimant was that of the critical period in 2012 when the claimant was at liberty and the defendant said that the claimant had done nothing about pursuing his health issues and attending a certain appointment. The claimant stated that he had indeed attended a GP whilst out of prison and had been given an appointment date for an operation to remove the lump in his leg. Thereafter he had been re-admitted into prison and the defendant had failed to organise attendance at this appointment.
The claimant was unable to evidence any of this information and there was no indication that he had in fact been listed for surgery. The evidence showed that the claimant had contradicted himself by telling an expert that he had not been registered with a GP as he was on the run from the police at the time and in his evidence he did concede that he had lied about the hospital appointment – see below regarding intervening act.
The court had to deal with a number of issues.
Duty of care: It determined that a (direct) duty of care on the part of the MOJ was not established. Whilst the MOJ did owe a duty of care to the claimant, this duty related only to matters pertaining to his custody, such as providing a safe environment and also to access to healthcare (but not the healthcare itself). The system was not defective and this direct duty did not include a responsibility to actively reinforce the role of healthcare operators.
Non-delegable duty of care: The claimant argued in the alternative that a non-delegable duty was owed to him by the defendant (on the basis that the defendant had entrusted the duty of care to someone else). The court considered the Supreme Court decisions of Woodland v Swimming Teachers Association (2013) and Armes v Nottinghamshire CC (2017) and stated that the imposition of such a duty could only be applied in exceptional circumstances where there was a special relationship antecedent to the act of negligence. Custody in itself was not enough and negligent healthcare was not something that the MOJ had undertaken to protect the claimant from. Thus there was no non-delegable duty of care.
Vicarious liability: The court had to consider whether the MOJ was vicariously liable for the negligence of healthcare providers but the court held that there was no relationship of employment or even delegation between the MOJ and the various healthcare providers.
Human rights: There had been no contravention of Article 3 ECHR (Prohibition of Torture) which states that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment." The failures would have been those of the healthcare providers and not the MOJ but in any event these did not reach the minimum test of severity and any such claim would have been time-barred.
Intervening act / causation: The court held that the claimant's failure to seek treatment during a very critical period when he was not in custody amounted to an intervening cause which prevented recovery for any established breach during this period.
Fundamental dishonesty: This very same issue relating to the critical period had shown that the claimant had been fundamentally dishonest and his claim would have failed in its entirety on these grounds had a duty of care been established.
Application of section 57 Criminal Justice and Courts Act 2015
Cockerill J considered the case law, notably the Court of Appeal decision of Howlett v Davies and Ageas Insurance Limited (2017) (see DWF update) as well as Gosling v Hailo (2014) (see DWF update) and in particular the passage in His Honour Judge Moloney's judgment where he stated that the corollary term to 'fundamental' would be a word with such meaning as 'incidental' or collateral'. The dishonesty had to go to the root of the claim.
The allegation made by the claimant that he had attended an appointment in 2012 resulting in a booking for an operation was critical to the claimant's case in establishing negligence on the part of the defendant. This was a central part of the claimant's case and was not a collateral or minor part of the case.
The judge then considered and approved the LOCOG decision quoting directly:
"In my judgment, a claimant should be found to be fundamentally dishonest within the meaning of s.57(1)(b) if the defendant proves on a balance of probabilities that the claimant has acted dishonestly in relation to the primary claim and/or a related claim (as defined in s.57(8)), and that he has thus substantially affected the presentation of his case, either in respect of liability or quantum, in a way which potentially adversely affected the defendant in a significant way, judged in the context of the particular facts and circumstances of the litigation."
He adopted the test in LOCOG by asking the following questions:
Did the claimant act dishonestly in relation to the primary claim and/or a related claim? To this the answer had to be 'yes'. The claimant had one main claim and the dishonesty went to one route to succeed with his claim in full.
Had the claimant thus substantially affected the presentation of his case, either in respect of liability or quantum, in a way which adversely affected the defendant in a significant way? Again, the answer had to be 'yes' because the factual argument that he had advanced would have entitled him to relief on the main claim.
The claimant then argued that if he was not granted relief, he would suffer substantial injustice (which is a discretionary exception that a judge can apply under Section 57 (2) where if a claim is found to be fundamentally dishonest "the court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed".
The judge again adopted the words of Knowles J in LOCOG to the effect that something more is required than a mere loss of damages to which the claimant is entitled to establish substantial injustice – that was the case here and if the claimant had established a claim, it would have failed in its entirety on these grounds.
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