Fletcher v Keatley (proceeding by his father and litigation friend) [2017] EWCA Civ 1540

The facts

In this case, the Court of Appeal was required to determine whether the claim should have been struck out as a result of the claimant’s deliberate exaggeration of their injuries.

The claimant was a passenger in the defendant’s car and had been involved in a road traffic accident in 2007 when he was 17 years old. The claimant sustained a mild head injury but the medical evidence was challenged in respect of the ongoing effects of this injury.

Both parties obtained evidence from a neuropsychiatrist and a neuropsychologist in respect of the psychological impact of the accident.

At first instance, the judge found that the claimant had continued to suffer post-concussional syndrome until the end of 2009 and had suffered a somatiform or psychological and non-deliberate disorder. It was also held that by May 2009 there was an overlap of deliberate behaviour on the part of the claimant which was evidenced by his failure to comply with medical tests. However, the judge concluded that the claimant’s family had acted reasonably in getting him neuropsychological support and the claimant would have recovered by the end of 2013.

The judge reduced the claimant’s award for pain, suffering and loss of amenity to reflect their deliberate behaviour to exaggerate the claim. Also, the claimant’s damages for past loss of earnings was reduced by 40% but no further deductions were made because the claimant’s deliberate behaviour was not seen to have manifested until May 2009.

The defendant appealed against the judge’s decision in respect of quantum. It was argued that the judge had been wrong to accept the opinion of the claimant’s neuropsychiatrist over the defendant’s neuropsychiatrist and the claim for damages should have been struck out for the period after 2008 due to the claimant’s deliberate exaggeration of their injuries.

Decision

The Court of Appeal examined the medical evidence and found that the defendant’s neuropsychiatrist, while being unable to identify any psychiatric injury, had not been able to provide any cogent material to counter the opinion that a likely psychological condition had developed. It was seen that the judge had the discretion to come to the decision that they had on the basis of the evidence. It was specifically stated that the judge’s analysis was not defective for want of sufficient reasoning and on balance the expert evidence favoured the claimant.

The Court of Appeal concluded that the judge had clearly preferred the opinions of the claimant’s neuropsychiatrist and neuropsychologist and his judgment had been clear as to the reasons for this.

In respect of the damages that the claimant was entitled to after 2008, the Court of Appeal noted that the judge had considered what course to take in the face of unsatisfactory features with the claimant’s case. It was noted that he had reached an entirely proper conclusion and had considered the matter in line with the approach set out in the BLM case of Summers v Fairclough Homes Ltd {2012} UKSC 26.

In Summers, the Supreme Court emphasised that a claim should only be struck out for dishonesty if it was a proportionate means of achieving the aim of controlling the court process and deciding cases justly. It would only be in very exceptional cases that it would be just and proportionate for the court to strike out an action after trial.

In this case, the Court of Appeal agreed that the judge had reached a pragmatic solution in accordance with the guidance in Summers. It was noted that it had been probable that the claimant’s exaggeration had increased towards the end of period in which he was claiming damages. The Court of Appeal held that the experts had reasonably not been able to determine the impact that the deliberate exaggeration had in respect of quantum.

As a result, the defendant’s appeal was dismissed.

What this means for you

In this case, the claimant had proved to the judge’s satisfaction that there had been some genuine adverse consequences of the accident during 2009 to 2013. Also, the Court of Appeal made clear that the judge had been entitled to reach the conclusion that he had bearing in mind the evidence available.

This case shows that the guidance in the Supreme Court case of Summers v Fairclough continues to be followed in respect of whether a case can be struck out following fraudulent exaggeration of the claim. Here, the Supreme Court made clear that the court had the power under the CPR and under its inherent jurisdiction to strike out a statement of case at any stage of the proceedings even where the claimant was entitled, in principle, to damages to some extent. However, striking out is a last resort, even more so where it would deprive the claimant of a substantive right to which they had been entitled. As a result, it remains the case, that only in exceptional circumstances, will a claim be struck out for deliberate exaggeration.

It can be seen that the dishonest exaggeration must go to the “heart of the claim” in order for the courts to find it fair, just and proportionate to strike out a claim. In this case, the medical evidence could not assess the extent to which the deliberate exaggeration had impacted upon the claimant’s presentation of their symptoms at any particular time. As a result, it was unclear to what extent any dishonesty had impacted upon the value of the claim.

This case highlights that the courts will still err on the side of caution when considering whether it is appropriate to strike out a claim on the grounds that parts of it had been improperly or even fraudulently exaggerated.

The facts of each case must be carefully considered and there will need to be strong evidence showing that the claimant had been dishonest and that this dishonesty is not trivial and impacted upon the whole of the claim. In this case, the claimant’s exaggeration had impacted upon the value of the claim but to what extent had been difficult to determine and the preferred medical evidence had supported that a likely psychological condition had developed.