Bungee jumper has claim struck out and is found guilty of contempt of court

The facts

On 4 November 2011, the claimant was involved in an incident during the course of his service with the Army and suffered an injury to his knee. Breach of duty was admitted but the claimant was put to strict proof in respect of causation and the alleged injuries and losses suffered.

The claimant was examined by a number of medical experts in the fields of orthopaedic surgery, pain management, and psychiatry.

He consistently complained of significant functional disability including ongoing pain in his knee which was stated to be particularly evident when walking or sitting for long periods of time. The claimant described anxiety and panic in social situations and there was express reference to the claimant stopping all sporting activity including bungee jumping since the index injury. Furthermore, the claimant stated he had not been able to go on holiday since the injury due to financial restrictions as well as describing significant functional incapacity including not being able to stand for more than a few minutes due to his poor balance and standing tolerance.

The defendant undertook covert surveillance showing the claimant carrying out various activities with no obvious functional incapacity, such as crouching, bending, and walking briskly with no obvious limp. In addition, searches on social media revealed various photographs uploaded from 2014-2016 showing the claimant on holiday in Thailand, riding an elephant, bungee jumping and attending a music festival.

The claimant served his witness statement asserting that the elephant ride and bungee jump were carried out in Thailand prior to the accident and the photographs were uploaded years later.

The defendant requested disclosure of the claimant’s passport as evidence of when he had been to Thailand.

Following this request, the claimant admitted that he had travelled to Thailand following the incident in June/July 2014, and had undertaken an elephant ride and a bungee jump whilst he was there. Further to this admission, no additional medical evidence was served by the claimant to try and explain his apparent ability to bungee jump and ride an elephant, the fact that he had been able to travel to and go on holiday in Thailand and/or to comment upon the video surveillance evidence.

The defendant made an application to strike out the claimant’s case as an abuse of process pursuant to CPR 3.4(2) or otherwise under the inherent jurisdiction of the court. The defendant’s case was that the nature of the abuse and the scale of the claimant’s dishonesty were sufficient for him to forfeit the right to have his claim heard.

In the BLM case of Summers v Fairclough Homes Limited [2012] UKSC 26, 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.

The decision

Recorder Grundy stated that striking out a claim is an exceptional order, particularly when a claimant has suffered an injury. He found the nature of the claimant’s dishonesty to be exceptional because he had given a false impression to medical experts and had also made a detailed witness statement, which was untruthful in order to cover up the lies.

Recorder Grundy found that there had been an abuse of process and an affront to the court. Also, considerable costs had been incurred so he held that it was just and proportionate for the claimant to forfeit his right to pursue the claim. As a result, the claimant’s claim was struck out and he was ordered to pay the defendant’s costs of the action.

The defendant made a concurrent application for committal of the claimant for contempt of court. In June 2017, permission was granted by HHJ Wood to pursue an application to commit the claimant in respect of making a false statement of truth.

At the committal hearing, the claimant was sentenced to 12 months imprisonment, suspended for two years. HHJ Wood stated “This court is concerned with integrity, openness, fairness and honesty. Statements of truth mean that and those who contemptuously sign witness statements are punished…

What this means for you

The strike out of a claim for a genuine injury, the order for the claimant to pay the defendant’s costs and the finding of contempt, sends out a strong message that litigants will face adverse consequences if they make false statements and/or exaggerate their claims.

The courts will be prepared to strike out a claim for abuse of process under CPR 3.4(2) where it can be shown that the dishonesty in respect of quantum goes to the heart of the claim. In this case, following the disclosure request, the claimant admitted the dishonesty. The evidence obtained showed that the claimant had lied about not being able to travel, bungee jump and carry out other physical activities. This evidence in respect of quantum showed a level of dishonesty that pervaded across the case generally, was central to the issues and tainted the whole claim.

It should be noted that the courts will look at the facts of each case and there needs to be strong evidence showing that the claimant had been dishonest, that it had not been trivial and had impacted upon the whole of the case. Here, the claimant’s exaggeration had significantly affected the value of the pleaded claim and had caused the defendant to undertake further enquiries and surveillance at considerable additional time and expense.