The High Court dismissed a low speed impact claim on appeal for fundamental dishonesty. It was found that the Judge at first instance had adopted "a much too benevolent approach to evidence from a claimant which could be demonstrated to be inconsistent, unreliable and, on occasions, simply untruthful."
The Claimant had made several inconsistent statements from the Claims Notification Form onwards, and whilst the first instance judge had taken this into consideration, the Claimant was still awarded damages.
On appeal, the High Court found that it was entitled to make a finding of fundamental dishonesty pursuant to section 57 of the Criminal Justice and Courts Act despite the fact that the Defendant had not sought to plead such an allegation.
The Claimant and the Defendant were involved in a low speed collision. The Claimant alleged he had suffered soft tissue injuries. The matter came to Trial before HHJ Main QC in April 2016.
The Claimant made the following inconsistent presentations throughout the progression of the claim:
- The Claimant had failed to disclose at least 4 previous accidents) to the medical expert;
- Contradictory evidence as to whether the Claimant had a passenger
- The Claimant made a claim for physiotherapy despite the CNF stating he had no rehabilitation needs
- The Claimant asserted in the CNF that he had no time off work, stated he had been absent for a period within his witness statement, yet made no claim for loss of earnings
- A vehicle damage claim was submitted for £1,300 when the Claimant had his vehicle repaired for £400
Nonetheless, HHJ Main QC addressed the weaknesses within the evidence provided by the Claimant, yet went on to make an award of £4,397, including £2,750 for general damages.
The Defendant appealed.
The appeal was allowed and the claim dismissed with a finding of fundamental dishonesty.
The Defendant submitted that it was not precluded from alleging fundamental dishonesty despite a failure to plead fraud or dishonesty with reference to the recent decision of Howlett v Davies & Anor. The Defendant also referred to the decision in Gosling v Screwfix in which the judge "held that exaggeration alone can give rise to a finding of fundamental dishonesty."
The Defendant also referred the Court to the decision of LOCOG v Sinfield and asked the Court to consider the proposition that HHJ Main QC failed to "pay sufficient regard to the inconsistencies and contradictions in the Claimant's evidence."
Mr Justice Spencer agreed with the Defendant's submissions that he should allow the appeal and dismiss the claim on the basis had been fundamentally dishonest pursuant to section 57 of the Criminal Justice and Courts Act. He also stated that HHJ Main QC should have "dismissed the claim because… the Claimant failed to prove his case."
What can we learn?
- The Defendant did not plead Section 57 fundamental dishonesty at any stage. The Defendant's submissions on appeal emphasised the decision in Howlett v Davies & Anor, which held that "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".
- Mr Justice Spencer determined that in certain circumstances, an appeal court is entitled to go back and make a finding of fundamental dishonesty, but that "it would require a very clear case indeed for an appellate court to effectively overturn the trial's judges conclusion [on the issue of dishonesty]… despite not having seen the witnesses give evidence."
- Mr Justice Spencer emphasised the importance of claims notification forms in Richards and another v Morris  EWHC 1289 (QB), stating that they "are important documents: they provide the basis for possible proceedings for contempt of court, as seen, and they provide valuable information at an early stage".