Stanton v Hunter, Liverpool County Court [2017]

The facts

The claimant’s accident occurred when he fell from the roof of the defendant’s outhouse. He alleged that the roof was made of asbestos, was fragile and should not have been accessible. He claimed that when a sudden gust of wind blew him off balance he went straight through the roof and sustained significant injuries.

The defendant admitted liability for the claimant’s accident but alleged contributory negligence on the part of the claimant.

The claimant submitted that he had been unable to work as a taxi driver as a result of the accident and claimed substantial past and future loss of earnings, submitting to the medical experts that he had not worked and was unable to work as a result of the accident.

The defendant obtained surveillance evidence showing that the claimant had been working as a taxi driver on a number of days in February, March and July 2014 and did not have the physical limitations he had alleged. The defendant argued that the claimant had provided false information to the medical experts in respect of his ability to work and made an application for the dismissal of the entire claim on the basis that the claimant had been fundamentally dishonest.

At the hearing, the claimant argued that he had tried to get back to working as a taxi driver but was unable to work enough hours to make any profit. The claimant also submitted that he had tried to advise the medical experts that he wanted to and was trying to work but he did not actually think that he was properly “working” because he was not making a profit.

Findings

The court established that the claimant’s former solicitors had terminated their retainer with the claimant, on the basis that they did not believe that he had been honest in respect of his claim, particularly in respect of his claim for loss of earnings. They had also successfully sued the claimant for their fees on this basis that the claimant had been dishonest.

The judge stated that even without this evidence they would have been satisfied that the claimant’s conduct had been dishonest. It was specifically held that notwithstanding the claimant’s literacy or learning difficulties, he was fully aware that he was providing false instructions in relation to his loss of earnings. In particular, it was noted that he had claimed for ongoing loss of earnings but then wanted to abandon this part of his claim when he could not produce any supporting evidence.

It was held that the dishonesty was fundamental to the claim and triggered the court’s duty to dismiss it under section 57 of the Criminal Justice and Courts Act 2015. It was concluded that the claimant had knowingly and repeatedly provided false information to the medical experts and his former solicitors. As a result, the claim was struck out with the court finding that there would be no “substantial injustice” to the claimant preventing them from striking out the case.

The court stated that there would not have been any deductions for contributory negligence and the genuine damages, which the claimant would have received, totalled £51,624.74. The actual judgment did not note what costs the defendant claimed but, under section 57 of the Criminal Justice and Courts Act 2015 a defendant would receive their costs claimed less the genuine damages which the claimant would have received (in this case £51,624.74).

What this means for you

In this case, the claimant had sustained injuries and incurred some losses and expenses, to include loss of earnings, as a result of the accident. However, there was evidence showing stark differences between the claimant’s genuine loss of earnings and what they had sought to claim. The claimant had been warned by their former solicitors of the need to provide truthful information and had only tried to withdraw their false claim for loss of earnings after they were asked for evidence in support.

It should be noted that the burden is on the defendant to prove, on the balance of probabilities, that a claimant has been fundamentally dishonest in respect of their claim. The burden of proof is high and a defendant needs to show that the dishonesty goes to the heart of the claim, is not trivial and is beyond mere exaggeration.

In this case, the claimant’s exaggeration had significantly impacted upon the value of the pleaded claim and had caused the defendant to undertake further enquiries and surveillance at considerable additional time and expense.

It is interesting to note that there is no guidance in respect of when “substantial injustice” would be caused to a claimant, to the extent that the claim could not be struck out on the grounds of fundamental dishonesty. However, judging by this case, the claimant will only be seen to suffer “substantial injustice” in exceptional circumstances. Also, it should be noted that there is no definition provided for the term “fundamentally dishonest”, although case law indicates that for the dishonesty to be fundamental then it must go to the heart of the claim.