Expert Witness Journal Dec 24 - Journal - Page 12
The Beginnings of a Test
For Substantial Injustice?
Section 57 of the Criminal Justice and Courts Act 2015 compels the Court to dismiss a claim,
even though the claimant would be entitled to damages, where the Court is satisfied that it is
fundamentally dishonest. S.57(2) goes on to state that the Court must dismiss the primary claim
unless it is satisfied that the claimant would suffer ‘substantial injustice if the claim were
dismissed’.
What is substantial injustice? This was the question Mr
Justice Ritchie (Ritchie J.) faced in Kirsty Williams-Henry
-v- Associated British Ports Holdings Ltd [2024] EWHC
806 (KB).
3. If a finding of fundamental dishonesty was made,
would dismissal of the claim cause substantial injustice
to the claimant.
considering all matters including the legal costs
occasioned by the dishonesty.
- The scope and level of the claimant’s assessed
genuine disability caused by the defendant. In the case
of a very serious injury, would the deprivation of damages unjustly transfer significant care costs to the NHS,
social services and the taxpayer?
- The nature and culpability of the defendant’s tort.
- The Court should consider what the Court would
do in relation to costs if the claim is not dismissed.
- Has the defendant made interim payments? If yes,
how large are these and can the claimant afford to pay
them back?
- What effect will dismissal of the claim have on the
claimant’s life?
In relation to points 1 and 2, the claimant was found
to be fundamentally dishonest and the damages
award was assessed at £596,704. This article explores
the third issue; substantial injustice and what this
means.
The Judge applied each of the above factors to the
case and concluded that dismissing the claim did not
invoke the substantial injustice exemption. He had
been faced with a claimant who, for financial gain, had
lied and was unrepentant.
Prior to Williams-Henry, Knowles J had dealt with
substantial injustice in LOCOGG v Sinfield [2018]
EWCH 51 and Woodger v Hallas [2022] EWHC 1561,
but no test had been established. In the latter case, he
noted there was no defined meaning of ‘substantial
injustice’ but that “…county court judges will generally know it when they see it.” In Sinfield, he considered that substantial injustice must mean more than
the mere fact that the claimant will lose his/her genuine damages. Ritchie J. considers this interpretation
to be incorrect because the deprivation of genuine
damages is the penalty intended by Parliament, and to
ignore “…the very dismissal which is the only operative cause of any potential injustice, is imposing a
blindfold on the Judge which the Act itself does not
impose.” His view is that s.57(2) prompts a Judge to
balance all of the facts, factors and circumstances of a
case to reach a conclusion about whether substantial
injustice arises, and relevant factors are all of the circumstances and include:
- The amount claimed compared to the amount
awarded.
- The scope and depth of the claimant’s dishonesty.
- The effect of the dishonesty on the construction of
the claim by the claimant and the destruction/defence
of the claim by the defendant. This is be measured by
What could substantial injustice look like?
Given the absence of substantial injustice in this
case, we are left with the question of what substantial
injustice would look like.
On 21 July 2018 the claimant fell off Aberavon pier
and suffered a severe brain injury as a result. Liability
was not in issue as this had been settled at 2/3rds in
the claimant’s favour. Ritchie J highlighted the three
issues in question:
1. Whether the claimant had been fundamentally
dishonest.
2. The correct assessment of the quantum.
EXPERT WITNESS JOURNAL
What if Ritchie J. had been faced with a claimant who
owned up to their lies or showed remorse, or what if
the defendant was extremely culpable or the
claimant’s prognosis was bleak?
Untainting the tainted
The eight factors highlighted by Ritchie J. do not
explicitly mention a remorseful claimant, but allusion
to this was peppered throughout his judgment.
When you consider Ritchie J.’s points 2 and 3 above,
it may be that the effect of a backtracking claimant
could trigger a finding of substantial injustice, an impact on not only the scope and depth of the dishonesty
but also on the construction and defence of the claim.
If you look at the parts of the judgment addressing
fundamental dishonesty, Ritchie J. often refers to the
claimant’s commitment to the deception: “What I find
remarkable about this witness statement is that the
claimant continued to maintain that she had never
lied.” In para. 173, he lists 19 instances of where the
claimant has fabricated and exaggerated elements of
her claim.
10
DECEMBER 2024
