The right time for fundamental dishonesty
Patel v Arriva Midlands Ltd & Anor
High Court (QB)
14 May 2019
The latest High Court decision on fundamental dishonesty is interesting for its consideration of the timing of the defendant's application, and the concept of "substantial injustice" in the context of a high value personal injury claim. Liz Harrison reviews the judgment in Patel v Arriva Midlands Ltd & Anor (2019).
Section 57 of the Criminal Justice and Courts Act 2015
S.57 of the Criminal Justice and Courts Act 2015 requires that the court must strike out the entirety of a personal injury claim, including any genuine part, where:
the court finds that the claimant is entitled to damages in respect of the claim, but
on an application by the defendant for dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.
…unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.
Substantive guidance was provided to courts considering s.57 fundamental dishonesty applications in LOCOG v Sinfield (2018) however in the case of Patel the court had to determine whether it could dismiss a claim under s.57 if damages had not yet been assessed.
The claimant, a pedestrian, was injured when knocked over by a bus in a road traffic accident in January 2013. At a liability trial in October 2017 the court found for the claimant on primary liability but made a finding of 40% contributory negligence against him.
There was no doubt that the claimant had sustained injury in the accident. He had a cardiac arrest at the scene and was resuscitated. He was diagnosed with a subarachnoid haemorrhage. He was not discharged home until May 2013 after spending time in the intensive care unit, a general ward and then a rehabilitation unit.
When assessed by medical experts for the claimant (in January 2015) and the defendant (in August 2016) his presentation was of a severely disabled individual. He was found by both to be in bed, mute, almost entirely unresponsive and without movement in his hands, arms or legs. The claimant's son, who was his litigation friend, advised both experts that his father's presentation to them was typical. At best, the claimant's expert was told, "he would sit out, appearing to watch tv, or opening his eyes and looking around when family visit".
Neither the claimant's neuropsychiatrist, Dr Fleminger, nor the defendant's neurologist, Dr Schady, could find a neurological explanation for the claimant's presentation.
Dr Fleminger considered the possibility of conscious exaggeration, but rejected this in favour of a diagnosis of severe conversion disorder. He considered that the claimant lacked capacity. Dr Schady noted a number of aspects of the claimant's presentation, such as the absence of muscle wasting, which appeared inconsistent with his presentation, but was unable to make a distinction between feigned disability and a subconscious conversion disorder.
Surveillance evidence, which had been obtained in the time between the two experts' assessments, was subsequently disclosed. In stark contrast to the claimant's presentation the footage revealed that he was able to go out, walk, talk, and interact with others without any assistance from or dependence upon his family.
Having viewed the surveillance, Dr Schady considered that conversion disorder was not a tenable diagnosis. He considered the footage to be evidence that the claimant's alleged disability was feigned, and that his son's description of his disability was "frankly deceitful" and that "he lied to us". He considered that the claimant's pretence of disablement was also an attempt to deceive.
The claimant served no additional evidence from Dr Fleminger but, instead, served statements from family and friends, together with a letter from his treating neurologist seeking to explain that he actually had good days and bad days. The claimant's son admitted that he did not “communicate as effectively as he should have done” with the experts.
The s.57 application came before Her Honour Judge Melissa Clarke for determination.
The claimant sought to persuade the court that the issue could not be determined justly at this stage and that proceedings should be allowed to continue to quantification so that the court could consider:
all the witness evidence now available - as otherwise the court would have to be satisfied that the witnesses were lying without testing their evidence;
full and further expert evidence and a capacity assessment.
The claimant argued that the court could not assess whether there would be substantial injustice to the claimant if his claim was dismissed without a full assessment of the value of the claim as, without this, it could not understand the extent of the claim being dismissed.
It was additionally submitted that it would cause substantial injustice to the claimant as a protected part if his claim was dismissed because of the dishonest conduct of his litigation friend (his son).
HHJ Clarke considered the guidance set out in LOCOG as to the procedure to be followed when determining a s.57 application:
Firstly consider whether the claimant is entitled to damages in respect of the claim.
Then consider whether the defendant has proved on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim.
If so, then the entirety of the claim, including any element which is not dishonest, must be dismissed unless to do so would cause the claimant to suffer substantial injustice.
She also added a further point that, per s.57(4), the judge must also assess and record the amount of damages that would have been awarded for the honest part of the claim.
On the specific submissions she found that:
Dr Fleminger's assessment on capacity was based upon incorrect information and did not establish that the claimant lacked capacity. Absent any evidence that the claimant lacks capacity he must be presumed to have capacity in accordance with s.1(1) of the Mental Capacity Act 2005; she found that the claimant himself had been fundamentally dishonest, assisted by his son.
It was too late for the claimant to submit that the s.57 application had been made too early and should have waited until a quantum trial – this was a submission which should have been made at the previous directions hearing (and if it had been, there was no appeal).
The witnesses now brought forward by the claimant, suggesting that he had serious difficulties and that he had good days and bad days, were wholly at odds with the claimant's presentation to the experts and the evidence of his son. Even if their evidence of the claimant's abilities was true, it did not help him as it did not answer the inconsistencies between his presentation and the surveillance.
Further medical evidence and review of updated records would not assist. The issue was not whether the claimant was ill or continued to have some problems but whether he had been fundamentally dishonest in relation to the pleaded claim. Costs of full quantification to the parties and in terms of call upon the court's resources would be both unnecessary and disproportionate, in breach of the overriding objective.
The judge therefore:
Found that the claimant had been fundamentally dishonest, rejecting a submission that his presentation had been exaggerated rather than faked.
Rejected the submissions that dismissing the whole of the claim would cause substantial injustice
She dismissed the entirety of the claim and then went on to assess the value of the "honest" part of the claim in accordance with s.57(4) at £5,750. In so doing she roundly rejected and criticised the claimant's hopeful submission that she was unable to do this because the schedule was not particularised.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.