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LYING IN WAIT Ian Clarke On Trial By Ambush And Fundamental Dishonesty – Personal Injury


Andrew Jenkinson v Gary Robertson [2022] EWHC
791 (QB)

Under what circumstances can a Defendant accuse a Claimant of
fundamental dishonesty? That was one of the central questions
before the Court in the recent High Court decision of Andrew
Jenkinson v Gary Robertson
.

Background

The Claimant was injured in a road traffic accident on 24 July
2013. The Defendant accepted liability for the accident but fought
on the issues of causation and quantum, disputing that the Claimant
suffered from an ongoing injury to the mid-back.

Overall, HHJ Dodd, who heard the trial at first instance, was
impressed by the Claimant, who was acting in person. However, in
relation to one issue the judge found that the Claimant had
demonstrated a willingness to manipulate the evidence to
his perceived advantage
“.

The judge quantified the value of the Claimant’s (admitted)
injuries in the sum of £14,000. That figure contrasted with
the sum claimed in the Claimant’s final schedule of loss, which
exceeded £500,000.

During closing submissions, the Defendant invited the Court to
find that the Claimant had been fundamentally dishonest, so that
section 57 of the Criminal Justice and Courts Act 2015
(“the 2015 Act”) was triggered. The judge acceded to the
application, holding that “I cannot find, on the balance
of probabilities, that the Claimant, an intelligent man, sincerely
believes the account of his symptoms that he has put before the
Court. He has, I am afraid, been fundamentally dishonest in
advancing the Claim
“.

The Claimant appealed on a range of points. The matter came
before Fordham J who refused several grounds of appeal, but allowed
the Claimant to appeal in respect of the finding of fundamental
dishonesty on the basis that the judge’s finding was wrong
and/or vitiated by procedural unfairness.

The substantive appeal was heard by Choudhury J who spent some
time considering the authorities on fundamental dishonesty, and
especially the Court of Appeal judgment on Howlett & anor v
Davies & anor
[2018] 1 WLR 948, which concerned the extent
to which notice was required for an application under s.57 of the
2015 Act. In that decision Newey LJ said at §31:

Statements of case are, of
course, crucial to the identification of the issues between the
parties and what falls to be decided by the court. However, the
mere fact that the opposing party has not alleged dishonesty in his
pleadings will not necessarily bar a judge from finding a witness
to have been lying: in fact, judges must regularly characterise
witnesses as having been deliberately untruthful even where there
has been no plea of fraud. On top of that, it seems to me that
where an insurer in a case such as the present one, following the
guidance given in Kearsley and Klarfeld [2006] 2 All ER 303, has
denied a claim without putting forward a substantive case of fraud
but setting out “the facts from which they would be inviting
the judge to draw the inference that the plaintiff had not in fact
suffered the injuries he asserted”, it must be open to the
trial judge, assuming that the relevant points have been adequately
explored during the oral evidence, to state in his judgment not
just that the Claimant has not proved his case but that, having
regard to matters pleaded in the defence, he has concluded (say)
that the alleged accident did not happen or that the Claimant was
not present. The key question in such a case would be
whether the Claimant had been given adequate warning of, and a
proper opportunity to deal with, the possibility of such a
conclusion and the matters leading the judge to it rather than
whether the insurer had positively alleged fraud in its
defence.
(Emphasis added)

Basic fairness therefore requires that a Claimant should be
afforded adequate warning, and a proper opportunity, to deal with a
possible finding of fundamental dishonesty. In Jenkinson v
Robertson
, the Defendant acknowledged that there had been no
express notice given to the Claimant in advance of trial that
fundamental dishonesty would be alleged in relation to his case as
to the onset of symptoms. The pleaded case had put the Claimant to
proof on the injuries and symptoms and did not suggest anywhere
that this was a case of exaggeration.

The Defendant’s position of appeal was that in
correspondence it was asserted that the claim was
exaggerated” and
unreasonable” and that reference to section 57
afforded the Claimant with sufficient notice. Choudhury J disagreed
with those assertions and at §33 held:

A claim that is
unreasonable is not necessarily dishonest; it may simply be
misconceived. A claim that is exaggerated may be so because of the
inclusion of losses that are wrongly believed to arise out of the
accident in question. If a defendant wishes to establish
that an exaggerated or unreasonable claim is fundamentally
dishonest, then the basis on which that dishonesty arises or is
alleged to arise ought to be made clear.
The
correspondence suggests that the losses claimed were unreasonable
and exaggerated; it is not clear from the correspondence that it
was being alleged that the Claimant was exaggerating the onset of
symptoms. Any doubt that that was the case being put by the
Defendant would have been cleared up by setting out its position
with specificity
.”

It must be said that the Defendant’s representatives did not
cover themselves in glory, as the Claimant had in fact sought
particulars of the allegations of dishonesty. In a letter to the
Defendant’s solicitors he noted that unspecified allegations of
fundamental dishonesty “have no value or
meaning
” and made it “impossible for [the
Claimant] to evaluate or respond to“. The request for
proper particulars was met with a refusal to supply any details and
a statement that “[m]atters or findings of dishonesty will
be a matter for the court
“. This approach, the Court
thought, “is not a satisfactory way in which to pursue an
application of fundamental dishonesty. Of course, the failure to
provide particulars in March 2019 would not of itself preclude an
application from being made subsequently, if the Howlett
requirements of adequate notice and a proper opportunity to respond
are met at the later stage. In the present case, that did not occur
either.

At §40, Choudhury J concluded by saying:

In my judgment, the
approach taken by the Defendant did not comply with the requirement
of adequate notice. Indeed it is difficult to see that the Claimant
was given any real notice at all, apart from a vague and
deliberately unparticularised allusion to the possibility of a s.57
application. Merely alluding to such possibility does not, in the
circumstances of this case, amount to adequate notice. Were that
not so then defendants could routinely flag up the possibility of a
s.57 application in advance of trial and then seek to rely upon the
fruits of a successful cross-examination to support such an
application without giving any further notice. I do not consider
that approach to be fair or procedurally sound. A defendant can of
course give a claimant fair warning that if the evidence turns out
a certain way then a s.57 application might follow. However, a
defendant could not simply rely on putting the claimant to proof in
order to satisfy the requirement of adequate notice; something more
specific would be required so as to alert the claimant (perhaps
after the evidence has emerged under cross-examination) as to which
aspects of his case were considered to be fundamentally
dishonest
.”

Conclusion

Post-Howlett it has long been understood that an
allegation of fundamental dishonesty, whilst not requiring a formal
pleading, did require proper notice. The requirement notice has,
arguably, been more honoured in the breach than the observance,
with Defendants making vague mutterings in correspondence about
exaggeration, credibility and the possibility of an application
under section 57. Choudhury J’s decision is a welcome
corrective to this position, and a reminder that allegations of
dishonesty are serious and require proper notice, and a proper
evidential basis, if they are to succeed without any risk of
reversal.

This article was first published in PI Focus, 1st
June 2022

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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