Fundamental Dishonesty – recent cases
The question of fundamental dishonesty seems to be a hot topic in the Courts at the moment, with a number of recent reported cases.
There have been examples of where Judges have held that claimants’ actions, while potentially dishonest, do not amount to fundamental dishonesty (Cojanu v Essex Partnership NHS Trust).
Equally, where fundamental dishonesty is established, Courts have confirmed consequences are severe. The Court in Woodger v Hallas held that the Claimant’s claim should be dismissed in its entirety due to inflated loss of earnings claims. There can also potentially be criminal ramifications: a Claimant’s mother was given a 2-year suspended sentence in Hull University Teaching Hospitals NHS Trust v Colley  EWHC 854 (QB) for knowingly making false statements in support of her daughter’s clinical negligence claim, which significantly exaggerated the levels of disability; and in North Bristol NHS Trust v White  EWHC 1313 (QB) the Claimant was sentenced to a 6 month custodial sentence for claiming she needed a crutch to walk, which was found to be dishonest following surveillance.
We discuss two of these cases in more detail below:
Cojanu v Essex Partnership NHS Trust  EWHC 197 – what amounts to fundamental dishonesty?
This was a claim for clinical negligence by a prisoner on remand. The Claimant suffered deep cuts to his fingers and it was claimed that the Defendant was negligent in delaying his surgery, which meant the Claimant lost the opportunity to make a full recovery.
The Defendant pleaded fundamental dishonesty in relation to a number of aspects of the claim, including the mechanism of the injury. The Judge at first instance held that the Claimant had been fundamentally dishonest in how the injuries to his hand were caused. The claim was therefore dismissed under section 57 of Criminal Justice and Courts Act 2015 (“CJCA”).
The Claimant appealed and was successful. Mr Justice Ritchie examined previous case law and reiterated the five point test that needs to be met for an argument of fundamental dishonesty to be successful:
- the CJCA s 57 defence should be pleaded;
- the burden of proof lies with the Defendant to the civil standard;
- a finding of dishonesty by the Claimant is necessary;
- this must relate to a matter fundamental in the claim;
- “fundamental” means it must have a substantial effect on the presentation of the claim.
The Judge held that the mechanism by which the Claimant was injured was irrelevant to the clinical negligence claim and therefore the finding of fundamental dishonesty was overturned. Dishonesty relating to a matter incidental or collateral to the claim was not sufficient to give rise to a finding of fundamental dishonesty.
Woodger v Hallas  EWHC 1561 (QB) - what amounts to a “substantial injustice?”
Where a Claimant has been fundamentally dishonest in their personal injury claim, the Court must dismiss the entire claim, unless it is satisfied that the Claimant would suffer a substantial injustice, but what does this substantial injustice actually mean in practice?
The recent decision in Woodger v Hallas  EWHC 1561 (QB) has provided some guidance. The Claimant was a passenger in a car driven by the Defendant which was involved in a road traffic accident. Liability was admitted. The Claimant sustained significant injuries, which he claimed limited his mobility and ability to work as a mechanic. He was subject to surveillance which included a lengthy sequence of him working at a local garage.
At first instance, the Judge awarded the Claimant damages and found that while the Claimant had been fundamentally dishonest in his loss of earnings claim, some parts of the claim were “uncontaminated” by the dishonesty. The Defendant appealed on the basis that there was nothing to warrant a finding of substantial injustice.
Mr Justice Knowles allowed the appeal and dismissed the claim in its entirety. He held that there was no substantial injustice in doing so, noting the following:
- Substantial injustice must mean something more than the Claimant losing their genuine damages;
- The fact that others had provided gratuitous care (and would be due damages) is not sufficient;
- It is a balancing act – the nature and the extent of the injury should be looked at against the injustice of dismissing the whole claim;
- The Court should take into consideration the nature of the dishonesty, the length of time the dishonesty was sustained and involvement of others.
Refraining from giving a specific description, Knowles J said that “county court judges will generally, ‘know it when they see it’”.
These cases will no doubt be of interest to claimants and defendants alike as they provide further useful guidance as to how fundamental dishonesty will be approached by the Courts. It is clear that anything other than dishonesty “fundamental” to the claim will not be sufficient to give rise to a finding. Once, however, that finding has been made, the consequences set down by Parliament will be applied to the letter. Courts will be reluctant not to dismiss the whole claim and will only do so where there is discernible and definable injustice.