Trial judge’s finding of fundamental dishonesty overturned
In Denzil v Mohammed & Anor [2023] EWHC 2077 (KB) Mr Justice Freedman overturned a finding by a trial judge (HHJ Khan) that the claimant had been fundamentally dishonest. The finding that a minor head injury which was not part of the claimant’s pleaded case was fundamental dishonesty was not correct. This issue was found not “fundamental”. It did not affect the value of the claim, or the way the case had been presented.
The appeal was against an order of His Honour Judge Khan (“the Judge”) dated 17 January 2022. The key issue on the appeal is whether the Judge erred in making a finding of fundamental dishonesty by reference to a head injury which led to swelling over a period of three to four days. There is no challenge for the purpose of the appeal against the finding of dishonesty in alleging a head injury. However, it is said that the Judge erred in finding that this dishonesty in respect of the head injury was fundamental to the claim.
Neither Counsel before the Court appeared before the Judge. This Court has had the benefit of clear and well researched written and oral submissions from Mr Jeffrey Deegan for the Appellant and Mr Brian McCluggage for the Respondent.
Background
The Appellant claimed to be injured in a road traffic accident which occurred on 28 January 2019. It is not necessary to set out the evidence in respect of the accident before the Judge. The Respondent did not accept that there had been any accident. The Judge found that both the Appellant and the First Defendant were unimpressive witnesses, the latter more so than the former: see the Judgment at paras. 24-25. The Judge found that on the balance of probabilities, there had been an accident by reference to the evidence of the Appellant, the photographs, the evidence of Mr Holton and Mr Gilgrass who each gave evidence regarding the impact of the accident on the motor vehicles involved in the accident: see the Judgment at paras. 26-29.
The Appellant’s Skoda motor vehicle was a constructive loss. There were issues which are very common in such cases where storage and hire charges together were worth a multiple of the constructive loss claim for the vehicle itself. The Judge allowed the following sums:
(i) £300 representing vehicle recovery charges.
(ii) £3,694 was awarded for the constructive loss of C’s vehicle.
(iii) £672 of a £7,200 storage claim was allowed (28 days rather than 300 days).
(iv) £47,580 representing 305 days of credit hire.
As to the pain and suffering and loss of amenity claim (“PSLA”), it was recorded in the medical report that the Appellant reported injury to his neck and back and that he had been shaken and experienced moderate shock in his witness statement. During evidence he complained that in addition he had suffered a head injury for a period of four days.
The CNF (Claim Notification Form) did not refer to the alleged head injury. It was not referred to in the medical report of Dr Chishty. Dr Chishty did refer to moderate pain, stiffness and discomfort to (a) the neck, and (b) the shoulder from a day after the accident. This was said to be severe at the time of the report on 16 May 2019. He said that the symptoms of the Appellant had escalated from moderate to severe by 3.5 months after the accident. The prognosis was for recovery 9 months after the accident in the case of the neck and 10 months in the case of the shoulder.
The claim in respect of the head injury was also not referred to in the Particulars of Claim.
It was noted that the injury as described in the Particulars of Claim was to the neck and shoulder and as described in the medical report of Dr Chishty. Neither the Particulars of Claim nor Dr Chishty’s report referred to a head injury. It was evident that there was discussion at trial about the alleged head injury. Indeed, the failure of the Appellant to take this up with Dr Chishty was relied on by the Respondent as evidence that there never was a head injury.
It was felt apparent that this evidence and the failure to pursue the head injury claim through the CNF, Dr Chishty, the GP and the Particulars of Claim were relied upon by the Judge as evidence that the Appellant had not suffered a head injury. It was relied upon as evidence that the Appellant had not proven PSLA on the balance of probabilities. It is also evident from the above that the following allegations must have emerged in oral evidence, namely that the “head had not been swollen immediately after the collision” and that “it had swelled five to six hours after the collision, and…the swelling had lasted for three to four days”.
Submissions of the Appellant
The Appellant submitted that there was no basis to find that (a) the dishonesty in this case went to the root of the case, or that (b) it has substantially affected the presentation of his case, either in respects of liability or quantum, in a way which potentially adversely affected the defendant in a significant way. In making that submission, the Appellant especially relied upon the following facts and matters, namely:
(i) the allegation about a head injury was not a part of the pleaded claim, nor was it added to the Particulars of Claim before or after the making of a witness statement;
(ii) in his witness statement, the Appellant did not in the recitation of his claim for PSLA specify the head injury. At paras. 73-74 and onwards, the Appellant referred to the neck and shoulder injuries. He did earlier refer to the swollen head, but the fact that it was omitted from the list of injuries shows how it did not form part of the claim and/or was not treated as substantial;
(iii) in his oral evidence, the Appellant did not invite the Judge to include the head injury to be including in his claim for PSLA;
(iv) in closing, counsel for the Appellant did not invite the Judge to include the head injury when assessing the quantum of damages.
In the words of the Grounds of Appeal, “the Judge failed to identify whether the dishonesty was fundamental as defined by authority and it was wrong of him to dispatch the issue by saying that it was axiomatic.” The Judge did refer to the value of the head injury being nominal, but stated that “that does not affect the fact that the dishonesty goes to the root of the claim because of the assertion of head injury in circumstances where no head injury was sustained”. The Appellant objects to this because it fails to engage beyond the dishonesty with why it was fundamental. It did not explain the conclusion, particularly by reference to the case law and the facts as a whole, of how an element which was not a part of the claim and so minor relative to the claim for personal injuries could go to the root of the claim. Without more, the Appellant’s submission was that there was nothing or not enough to discharge the burden of proving that any dishonesty was fundamental.
On appeal, Mr Justice Freedman concluded: In some cases, it will be obvious that the dishonesty had a potential impact on the amount that might be awarded for a particular head of loss. For example, a personal injury claim will invariably involve a claim for PSLA, and a dishonest description of symptoms and suffering will inevitably have a potential impact on the PSLA. The significance of that potential impact is a matter for consideration in the context of whether the dishonesty went to the root of the claim. Conversely, it may be clear that the alleged dishonesty has no material impact on a particular head of loss.
I have concluded that the decision was wrong. In my judgment, there is no scope to find that such a minor and very short-lived injury, not forming part of the pleaded claim, but referred to in written and oral evidence, could be properly characterised or understood as being fundamental or going to the root of the claim. I therefore find that the conclusion that the dishonesty was fundamental cannot stand. For the reasons which I have given, the finding of fundamental dishonesty must be set aside. The appeal is therefore allowed. The claim will no longer be dismissed. I ask the parties to consider whether they can agree an order to reflect this judgment and to deal with such consequential matters as follow from the judgment.
Whilst the claimant was successful on appeal in this case, it is evident that all heads of claim should be explored thoroughly, and that witness statement(s) and medical evidence accuracy is imperative and any anomalies and discrepancies must be challenged and investigated at the earliest opportunity. These documents must be collaborative and supportive of the claim, injuries and more-so, each other.
How can PIC help?
As experts within their field, PIC must offer guidance and if required training to our Clients to ensure that when claims are accepted, they are utilising the initial investigative periods as pro-actively as possible and that when reviewing records and reports, full and detailed notes are taken.
This in turn will allow PIC the opportunity to fully understand and illustrate the case circumstances when preparing the Clients claim for costs.
David Webster, Costs Draftsman
21.12.2023