Where a Court makes a finding of fact that the Claimant's pleaded claim is based on incorrect evidence, should the Defendant seek a finding of fundamental dishonesty?

This question was raised in the recent case of Harris v Learning into Employment Academy Limited, in which judgment was handed down in Birmingham County Court on 1 May 2018.

The Claimant, employed by the Defendant, alleged that he fell down a flight of stairs at the entrance to the Defendant's premises and fractured his hip. It was accepted that the accident occurred and that he sustained a nasty injury. The circumstances of the accident were disputed, with the Claimant alleging that a) he fell from the top of the stairs and was unable to use the bannister (which did not reach the top of the stairs) and b) the bannister being moved and non-slip grips being added to the steps following the accident.

The Defendant maintained that the stairs and bannisters were not changed following the accident and that the photographs on which the Defendant relied showed their position at the time of the accident. The Defendant asserted that the Claimant had been seen to descend half of the stairs before he fell, and therefore that the position at which the bannister ended was not relevant to the claim; the Claimant's medical records and the accident report all indicated that the Claimant fell from 3-6 steps from the bottom. .

Expert evidence indicated that the stairs were generally safe, and the key question on breach of duty was the location from which the Claimant fell and the position of the bannister.

At the start of the trial the Claimant conceded that the bannister had not been moved following the accident, asserting that he became aware of this three months before the trial when he attended the site. He didn’t go on to explain why he had not made the concession until the trial. The Claimant and his witness who supported the claimants assertions were robustly cross-examinated, and the Defendant's evidence was to be heard on the second day of the trial.

Shortly before the second day of the trial commenced, the Claimant discontinued his claim and the Defendant applied for the notice of discontinuance to be set aside, following which the Defendant's witnesses gave evidence and the trial judge reserved her judgment.

On handing down the judgment, the trial judge found that the Claimant had fallen down a few stairs, rather than from the top of the flight of stairs. She found that the Claimant did not genuinely believe that he had fallen from the top but instead had deliberately misled the Court in order to further his claim. She found that the allegation of a fall from the top of the stairs went to the heart of the claim and that the Claimant had been fundamentally dishonest.

Whilst the potential value of the claim exceeded £200,000, the Court's finding enables the Defendant to seek to recover a contribution toward its costs.

The movement in the Claimant's case, at trial, indicated that he had pursued a claim on the basis that he knew that the evidence had served was incorrect, and that he had continued to pursue the claim knowing his evidence to be incorrect. Defendants and their representatives should be alive to changes in their opponent's case and to the question of whether the Claimants' actions expose them to findings of fundamental dishonesty as claims progress.

The Defendant, Learning into Employment Academy was represented by DAC Beachcroft Claims Limited.