The Issues

The Claimant at first instance brought a claim for damages in personal injury.  The matter went to trial where the claim was successful with the Claimant being awarded £3,624.18.

However, certain parts of the claim were not allowed, with the focus being on physiotherapy treatment, vehicle storage, transportation and credit hire fees.

At trial, the Recorder found that there was no doubt that the collision had occurred and no doubt that responsibility for the collision lay entirely with the first Defendant’s employee who had negligently driven into the back of the claimant’s vehicle.

Although dishonesty was not specifically pleaded, at trial counsel for the Defendant repeatedly put to the Claimant that he was dishonest in his evidence and that some of the documents produced were fraudulent.

The Claimant’s claim included a claim for physiotherapy and in his written statement the Claimant stated that the GP instructed by his solicitors had suggested he may benefit from such treatment to help aid his recovery and that he had in fact obtained this treatment which had proved helpful.  Eight sessions of physiotherapy at £100 per session were claimed in the particulars of claim but under cross-examination the Claimant admitted to only attending one session.

The Claimant was also challenged in cross-examination in relation to the claim for credit hire and the Defendant made submissions that this, alongside the claim for physiotherapy amounted to fundamental dishonesty.

The Recorder found that the claim had been prepared by solicitors which meant that the Claimant was clearly unfamiliar with parts of his witness statement and in cross-examination he had ‘happily volunteered’ information which could be considered detrimental to his case.

He therefore considered that the various discrepancies in the Claimant’s evidence could be explained by his lack of understanding of what was going on and since he did not know or understand the basis of the claim that the solicitors had advanced on his behalf, the Recorder could not make a finding of fundamental dishonesty.

The Defendants subsequently appealed the decision on the grounds that the Recorder had been wrong not to make a finding of fundamental dishonesty.

Held

Sitting in Leeds Combined Court, Mrs Justice Stacey dismissed the Appellant’s appeal and in her analysis said that in this case the Recorder was entitled to conclude from the Respondent's oral evidence in cross examination that he was not dishonest in relation to the claim. He had had a genuine accident caused by the negligent driving of the first Appellant's employee and had not sought to exaggerate his symptoms or the severity of his injuries. In his oral cross-examination it was readily apparent that he was unfamiliar with the contents of his statement, and as soon as the various matters were put to him, gave what the Recorder was entitled to conclude was a true account and was entirely honest.

As the Recorder noted, the Respondent "happily volunteered" information that was detrimental to aspects of the special damages claim in his oral evidence and the Recorder was entitled to conclude that the Respondent did not understand the documents, whether those that he had himself signed, such as his witness statement, or those signed on his behalf by his solicitors, namely the Particulars of Claim and the Reply.

Mrs Justice Stacey found that the Recorder was entitled to conclude that if there had been dishonesty it was not on the part of the Respondent and stated “ It may also be relevant to note that the troubling aspects related to the heads of claim - such as the physiotherapy and credit hire claim - would not be paid to the respondent himself, but to solicitors or settlement of the purported invoices”.

Comments

This case raises an interesting point about the distinction between a dishonest claim and a dishonest claimant.  “Fundamental Dishonesty” is a developing concept, but it appears that both the Recorder and Court of Appeal took the view here that although the pleadings exaggerated the claim and the witness statement did not reflect the words of the Claimant, if there was any dishonesty in the pleaded case it was not on the part of the Claimant. 

The full judgement can be found here:

https://www.bailii.org/ew/cases/EWHC/QB/2021/2318.html

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