Claimant avoids finding of fundamental dishonesty by the court attributing blame instead to his expert
Wright v Satellite Information Services Limited
High Court (QBD)
11 April 2018
In the third in a series of recent High Court decisions grappling with the concept of 'fundamental dishonesty' in relation to section 57 of the Criminal Justice and Courts Act 2015 ("Section 57"), DWF Consultant, Stratos Gatzouris examines the recent judgment of Mrs Justice Yip in Wright v Satellite Information Services Limited (2018).
This latest case follows the other High Court decisions in London Organising Committee of the Olympic and Paralympic Games (in liquidation) ("LOCOG") v Haydn Sinfield (2018) (see our update on LOCOG) and Razumas v Ministry of Justice (2018) (see our update) where there were findings made of fundamental dishonesty in terms of section 57.
In both cases the court had considered the definition of fundamental dishonesty in that context by finding that the claimants had acted dishonestly, thereby substantially affecting the presentation of their respective cases (either in respect of liability or quantum) and that the fact that they had done so had potentially affected the defendant in a significant way satisfied the relevant test.
In Wright, the High Court on hearing an appeal was not prepared to interfere with a finding that the claimant had not been found to be dishonest in the first place and therefore the remaining considerations of fundamental dishonesty did not need to be considered.
The claim arose as a result of an accident at work when the claimant, then aged 66 sustained a serious injury to his right lower limb. He was unable to return to work after the accident. The defendant admitted liability but quantum remained in issue.
The claimant claimed damages of £350,000 excluding PSLA. The main area of contention on appeal centred on a substantial future care claim for £73,000 (reduced from £109,000 which had originally been claimed) in respect of which the trial court only awarded £2,100. The defendant applied on this basis for a finding of fundamental dishonesty in terms of section 57.
The claimant had signed the statement of truth on the schedule of loss which put forward the future care claim which was also supported in his witness evidence. When he was cross-examined, he admitted that he had no ongoing need for care. The defendant's case was also supported by surveillance evidence which they considered showed exaggeration though this in fact was not considered by the judge on appeal.
The claimant had relied on the expert evidence of an occupational therapist who, taking into account that the claimant would need future surgery and was already needing assistance, arrived at a care plan which led to the calculation of such an extensive claim (10 hours per week currently and 6.5 hours in future). The claimant signed the schedule of loss (drafted by his solicitors) and stated in evidence that he signed this in much the same way one signs a set of accounts prepared by one's accountant.
The judge in the trial court did not agree with the expert opinion (which did "significantly overstate the care that the claimant requires") and found that the claimant should be awarded a substantially lesser sum. The judge did not though go on to find the claimant to have been dishonest, applying the objective test for dishonesty as laid down by the Supreme Court in Ivey v Genting Casinos (2017). The judge did however say that had he found that the claimant was fundamentally dishonest, then he would have struck out the entire claim on the basis that there would have been no substantial injustice to the claimant preventing that outcome.
On appeal, Mrs Justice Yip whilst being highly critical of the manner of drafting of the schedule of loss by the claimant's solicitors, stated that she had some sympathy for the claimant as regards his reliance on professional assistance in quantifying his claim and in his expert's evidence. The claimant had not laboured his point as far as his care claim was concerned, she thought.
She was of the view that the judge in the trial court had been entitled not to make a finding of dishonesty. The very fact that the future care claim had not been established did not make the claimant dishonest by merely presenting such a claim. This can be distinguished from the LOCOG case where the trial judge had initially found the claimant to be dishonest for manufacturing false invoices for a gardening claim.
The trial judge in this case had considered the issue of dishonesty throughout the trial and had not found the claimant to be dishonest – this was a finding of fact. He had weighed up all of the issues in doing so.
The appeal judge did say that there may be argument in future as to application of the principles identified in LOCOG but that this was not necessary here as there was no finding of dishonesty.
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