Substantial personal injury claim dismissed on the grounds of fundamental dishonesty
Gavin Alexander v Gary Wheeler [18.10.19]
In this case, the claimant’s personal injury claim for damages originally pleaded in excess of £800,000, was dismissed on the grounds of fundamental dishonesty. Kennedys were instructed to act on behalf of the defendant’s insurer, esure.
On 15 June 2014 the claimant sustained a tri-malleolar fracture to the right ankle when he was knocked over by a vehicle at work. A full admission of liability was made. The claim was originally pleaded in excess of £800,000 and the matter proceeded to Trial.
The claimant alleged at Trial that his ability to work had been severely curtailed as well as his ability to walk and drive, that he had lost out on promotion, and had to carry out alterations to his home and garden to accommodate his disability.
The claimant’s claim included significant sums for future care and assistance, dog walking and increased holiday costs.
The defendant argued that the claimant’s witness statements, testimony to experts, GP records, and schedules of loss were all misleading. As set out in the judgment, the defendant relied on surveillance footage, social media “and the comments on that evidence made by the orthopaedic (and to a lesser extent psychiatric) medical experts when comparing what they observe on the videos with the account they were given by the claimant.”
Recorder Tidbury noted that “the contrast between the schedules prepared before and after disclosure of the surveillance video is substantial”. The latter of two pre-disclosure schedules “(approved by the claimant on 4 February 2018) in the total of £818,846”, compared with the post disclosure schedule totalling “£408,936”.
This reduction was presented by the claimant to the court as “prudent preparation for trial”.
The Recorder explained that:
The initial injury is not in doubt. The problems with regard to healing are not in doubt. The issue of credibility arises in this case around the ongoing consequences to the claimant’s life arising out of the accident.
Later in the judgment stating that the issue in this case “is whether or not the damages schedule advance[d] on 4 February 2018 was dishonest and if so whether it was fundamentally dishonest.”
The claimant’s claim was dismissed on the grounds of fundamental dishonesty pursuant to s.57 of the Criminal Justice and Courts Act 2015.
The claimant’s evidence at Trial was described by the Recorder as “inconsistent”, “misleading”, “altered” and at odds with the joint orthopaedic expert evidence. Recorder Tidbury concluded that the “claimant is in my judgment an unreliable and dishonest witness who has sought to exaggerate his claim.”
The claims for future care, dog walking, additional holiday costs and alterations were described by the Recorder as “try ons” and the claimant would have known they were and so fell within the category of fundamental dishonesty.
The claimant was ordered to pay the defendant’s costs of the action on an indemnity basis, with credit for the genuine claims which would have been allowed if the claim had not been tainted by fundamental dishonesty.
There is clearly a distinction to be made between a claim being put at the highest level and one which is fraudulent. As the Recorder in this case stated, “a claim put at the highest level is not fraudulent unless it relies on fraudulent factual presentation”. In this instance the claimant was found to have given “a deliberately false account” and the losses claimed “went beyond what should have been advanced”.
On this point it was found that the case could “not be remedied simply by removing the items which are no longer consistent”. The surveillance evidence and social media (together with the orthopaedic evidence on the same) demonstrated that those claims were unjustified and the claimant would have been fully aware that the presentation of his situation to justify the level of damages claimed were untrue.
The parties were in agreement that the civil standard of proof applied but there was a difference in how high the standard should be.
The claimant submitted that in a case such as this it was for all practical purposes not far short of the criminal standard, citing Teare J at paragraph 21 in UK Insurance Ltd v Gentry . The defendant’s position being that the standard is the usual civil balance and nothing approaching beyond reasonable doubt. Recorder Tidbury found that the standard referred to by Teare J in Gentry is still the “ordinary civil balance of probability standard albeit it may suggest a more rigorous application of that test”.