Expert Witness Journal Dec 24 - Journal - Page 96
Australian Airline Qantas and the Australian
Competition and Consumer Commission
have Agreed to Resolve their Dispute
by Dominique Smith, Deka Chambers
Last week brought the news that the Australian
airline Qantas and the Australian Competition and
Consumer Commission have agreed to resolve their
dispute over cancelled flights by asking the court to
impose a $100 million fine, together with an undertaking by the airline to pay affected consumers $20
million in compensation. The airline was accused of
misleading passengers by advertising for sale flights
which it had already cancelled, and by failing to notify
passengers that their flights had been cancelled until
two or more days after the decision had been taken.
These practices were said by the ACCC to be in breach
of Australian consumer law. It is interesting to speculate as to whether the UK Competition and Markets
Authority, which is about to be awarded new powers
by way of the Digital Markets, Competition and Consumers Act, is keeping an eye on its antipodean
brethren and readying itself for the fray within this
jurisdiction – watch this space.
interim payment in the sum of £75,000. The interim
payment was intended to be used for rehabilitation
and additional treatment. Whilst the application had
initially been adjourned, a later order of the court enabled the interim payment application to proceed before Master Fontaine. Notably, the Defendant did not
contend that the two limbs of Cobham Hire Services v
Eeles [2009] EWCA Civ 204 were not satisfied. Rather,
the Defendant’s position was that the Claimant had not
satisfied the pre-condition needed to enable the court
to make an order for an interim payment set out in
CPR 25.7(1)(a), namely that “the Defendant… had admitted liability to pay damages or some other sum of money to
the Claimant”, as the Defendant averred the Claimant
had been fundamentally dishonest pursuant to section
57 of the Criminal Justices and Courts Act 2015.
Judgment
Master Fontaine noted the surveillance footage had
been put to the experts for their respective conclusions, which notably differed as to whether the
Claimant had been truthful in his accounts to them at
interview. However, the issue of whether the Claimant
was exaggerating the effect of his injuries and whether
he was fundamentally dishonest in so doing could
only be resolved at trial. Even if section 57(1) was satisfied, there were different options available to the trial
judge as to what the consequences of the finding
should be (for example, if the court found that the
Claimant would suffer substantial injustice).
Mehmood (by his Litigation Friend, Mrs Asma
Islam, pending determination by the court) v Harry
Mayor [2024] EWHC 1057 (KB)
This week, another case involving allegations of
fundamental dishonesty has landed on our desks.
Rather than being a case by which such allegations
were proved or disproved at trial, Mehmood (by his Litigation Friend, Mrs Asma Islam, pending determination by
the court) v Harry Mayor [2024] EWHC 1057 (KB) concerned whether an interim payment application could
succeed where fundamental dishonesty had been
raised by a defendant in their Amended Defence.
Master Fontaine agreed with the Defendant that the
requirements of CPR 25.7(1)(a) were not satisfied in
this claim. By virtue of the plea of fundamental dishonesty, the Defendant had denied liability to “pay
damages” to the Claimant and sought by way of their
Amended Defence dismissal of the claim. That, in
Master Fontaine’s view, was the short answer to the
application. It was noted that there was no Reply to
the Amended Defence denying the allegations of fundamental dishonesty, nor any application to strike out
that part of the Amended Defence or for summary
judgment. Further, there was no witness evidence disputing the interpretation of the surveillance evidence.
Consequently, the application was dismissed and the
previous interim payment could not be approved.
Factual background
By way of a brief background, the Claimant was
riding a motorcycle in January 2019 when he was involved in a collision with the Defendant’s vehicle. Primary liability was admitted with contributory
negligence, causation and quantum remaining in dispute. The Claimant suffered a significant brain injury,
which was classified as being in the Moderate to Severe range of the Mayo classification, as well as a number of orthopaedic and soft tissue injuries. It was
claimed that he lacked capacity, thus he brought his
claim by a Litigation Friend. The issue of capacity was
disputed to the extent that the Defendant had
pleaded fundamental dishonesty in their Amended
Defence, relying on medical and surveillance evidence. A trial on the preliminary issue of capacity had
been adjourned to the trial judge to be determined at
trial.
The Claimant made an application in May 2021 for
retrospective approval of an interim payment of
£10,000 made in August 2019 and for a further
EXPERT WITNESS JOURNAL
Discussion
This is an interesting judgment, which all personal
injury practitioners should be aware of. It is increasingly common to see allegations of fundamental dishonesty pleaded in defences. However, in this
application, those allegations were compounded by
the surveillance evidence and the commentary by the
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DECEMBER 2024
