Expert Witness Journal Dec 24 - Journal - Page 51
Success at Trial: Securing a finding
of Fundamental Dishonesty and
Indemnity Costs Recovery
Clyde & Co successfully defended a claim at trial on behalf of a leading insurance company,
achieving a finding of fundamental dishonesty against a claimant who exaggerated the impact
of a three-month soft tissue injury, claiming he had significant symptoms that persisted for over
seven years.
The claimant sustained an injury to his left shoulder
during his employment. While primary liability was
admitted prior to litigation, the claimant pursued proceedings, seeking over £450,000 for pain, suffering,
and loss of amenity (PSLA), loss of earnings, and care.
He alleged the shoulder injury was severely debilitating, leaving him unable to use his left arm for basic
daily tasks. This assertion was contradicted by extensive NHS investigations and treatment, which found
no physical cause for his complaints.
The interpretation of “fundamental” and “dishonesty” is guided by key authorities, including London
Organising Committee of the Olympic and Paralympic Games
v Sinfield [2018] EWHC 51 (QB) and Ivey v Genting
Casino (UK) Ltd [2017] UKSC 67.
The Defendant’s Strategy
The defence was amended to plead fundamental
dishonesty, which was accepted by the court. Despite
an offer made by the defendant to account for some
causation, the claimant rejected it and instead served
a final schedule of loss claiming over £200,000 for care
and lost earnings, unsupported by evidence.
Medical Evidence
The claimant was assessed by an orthopedic expert
instructed by the defendant, who reported that the
claimant claimed total incapacity in his left arm due to
constant pain. However, the expert observed no physical abnormalities, such as deformity or muscle wasting, and noted that the muscle bulk in the claimant’s
left arm was well-preserved, an inconsistency for
someone claiming long-term immobility. The expert
concluded that the claimant had sustained only a
three-month soft tissue injury.
At the two-day trial, Miss Pascale Hicks of Deans Court
Chambers, acting for the defendant, meticulously dissected the claimant’s evidence, exposing numerous
inconsistencies in his account. During cross-examination, the claimant persisted in alleging that his treating
and medico-legal experts were incorrect and maintained he could not use his left arm.
The defendant’s orthopedic expert provided oral
evidence, ruling out psychiatric causes and concluding
that conscious exaggeration was the only credible explanation for the claimant’s complaints.
Conversely, the claimant’s own orthopedic expert initially diagnosed a frozen shoulder and recommended
a referral to a pain clinic, suggesting the symptoms
could become chronic. However, during a joint expert discussion, he conceded that he had not reviewed
recent investigations and acknowledged that the
claimant’s restricted movement appeared exaggerated. He ultimately agreed that a three-to-six-month
recovery period was reasonable.
Judgment
In his judgment, the judge found that the claimant
had failed to demonstrate that dismissal of the claim
would result in substantial injustice, as required under
Section 57. He described the claimant’s position as untenable, noting that he had disagreed with his own
clinicians and experts. The judge found the claimant’s
testimony unreliable, highlighting his selective memory and evasive responses under cross-examination.
Further undermining the claimant’s case, an earlier
orthopedic report commissioned by his former solicitors raised concerns about conscious exaggeration.
Medical records repeatedly noted that the claimant’s
restricted movements appeared to be voluntary.
The judge concluded that the claimant’s dishonesty
was fundamental, as it undermined the core of his
case. Consequently, the entire claim was dismissed
under Section 57. The court also disapplied QOCS
protections under CPR 44.16, ordering the claimant
to pay the defendant’s costs on an indemnity basis
from the expiry of the defendant’s Part 36 offer.
Legal Framework
The case relied on Section 57 of the Criminal Justice
and Courts Act 2015, which mandates the dismissal of
a personal injury claim in its entirety if the court finds,
on the defendant’s application, that the claimant has
been fundamentally dishonest, unless such dismissal
would cause the claimant substantial injustice.
Additionally, under CPR 44.16, the usual Qualified
One-Way Costs Shifting (QOCS) rule can be set aside,
enabling the defendant to recover costs if fundamental dishonesty is established.
EXPERT WITNESS JOURNAL
Conclusion
This case highlights the robust application of Section
57 of the Criminal Justice and Courts Act 2015 and
CPR 44.16 to deter dishonest claims and protect defendants from undue financial exposure. Clyde &
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DECEMBER 2024
