Expert Witness Journal Dec 24 - Journal - Page 13
This leads us to speculate on whether there is a point
of no return for a dishonest claimant. Can they redeem what they have tainted, and is it too late if they
come clean in the courtroom? It remains to be seen
what will happen in the case of a defendant who applies for a finding of fundamental dishonesty after the
claimant has dropped the dishonest parts of their
claim following disclosure of incriminating evidence.
the index accident. Despite the threat of suicide,
substantial injustice was not triggered.
What impact on their life would a claimant need to
show in order to trigger substantial injustice? The dismissal of a claim is never going to have a positive impact, but it seems that a claimant will need to show a
definitive and negative impact above and beyond the
punitive consequences clearly envisaged by s.57.
Why should the taxpayer carry the cost?
Ritchie J.’s point 4 noted the claimant’s genuine
disability and considered the impact on the NHS, social services and taxpayer. Is it a substantial injustice
to deprive a dishonest claimant of damages to cover
significant, albeit genuine, future care costs?
In conclusion - the point behind s.57 and a balancing
act for substantial injustice
S.57 needs to have bite and if substantial injustice is easily triggered, that bite is diminished. It is clear however
that subsection (2) recognises a situation where it may
not be appropriate to dismiss the claim in its entirety.
The parameters of that situation remain unclear, but
we are now beyond ‘you’ll know it when you see it’.
What is interesting is that this factor appears to shift
appreciation of who the sufferer of substantial injustice
is, from the claimant to the taxpayer. After all, the
claimant will receive care and treatment in any event;
the substantial injustice here is to the NHS, social
services, and taxpayer.
The dishonest claimant will have to tip the scales in
their favour with reference, in essence, to redeeming
factors to their credit and/or detrimental factors to the
defendant’s discredit. The weight attached to each factor will be very much case-specific, and not all eight
factors will be applicable in every case.
S.57(2) only has the claimant’s substantial injustice in
mind (“…the claimant would suffer…”) and it is questionable to suggest that receiving publicly funded care,
instead of privately funded care, is an injustice to the
dishonest claimant.
In Ritchie J.’s eight factors, we have the beginnings of
a test but it will only become fully formed through
practice and precedent; substantial injustice remains
the exception and not the rule.
An extremely culpable defendant
The defendant in this case was on the lower end of a
culpability scale, but what if several people had been
injured in the past due to the same defect which the
defendant had neglected to rectify? A court is faced
with a competing issue – it doesn’t want to reward
the claimant’s dishonesty, but should an egregious
defendant escape unscathed?
Authors:
Sarah Hill - Partner
Damian Rourke - Partner
www.clydeco.com
Mr Jaykar Panchmatia
This is potentially one of the stronger hypotheticals
for substantial injustice; could it be argued that a dishonest claimant should recover the ‘honest’ part of
their claim if the defendant has also come to court with
unclean hands?
MA (Cambridge) MPH (Harvard) MB BChir (Cambridge) FRCS (Trauma & Orthopaedics)
Consultant Orthopaedic & Spinal Surgeon
High confidence, high quality, high speed reports
Cambridge University | Harvard University | Fulbright Scholar |
Johns Hopkins Fellow | Robert Jones Gold Medal Winner
The issue of interim payments.
This seems to be the point of potential injustice. It was
Ritchie J.’s view that requiring the claimant to repay
£75,000 – when taken in the context of the dismissal
– could be an injustice as she would “…then be homeless, jobless, depressed, and suicidal.”
Mr Panchmatia is a Consultant Orthopaedic Spine Surgeon at Guy’s and St. Thomas’
Hospitals NHS Trust. He has presented internationally, and is published widely in
orthopaedic and neurosurgical journals. His Spine Fellowship was at Johns Hopkins
Hospital, USA. Mr Panchmatia graduated from Cambridge and Harvard Universities.
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The question of whether such a repayment order
would be a substantial injustice was not addressed, but
it is worth mentioning here. If you consider the scenario of a thief who has stolen an item, it is surely a
stretch to say that the requirement to return that item
to its rightful owner is an injustice to the thief.
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However, given that a Judge can just refuse to make
the order of repayment, it is difficult to imagine a
scenario where the fact of interim payments would
trigger the issue of substantial injustice.
• Spinal fractures
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Impact on the claimant’s life
Ritchie J. was faced with a claimant who threatened
suicide on a finding of fundamental dishonesty, but he
found that her mental state and inability to pay her
mortgage resulted from her own dishonesty, not
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11
DECEMBER 2024
