Seeking fundamental dishonesty on appeal: a claimant whose evidence was “perforated with inconsistency” and “exaggerated” should have been found fundamentally dishonest

Following the decisions of Molodi v Cambridge [2018] and Richards & Anor v Morris [2018], it is commonplace for defendants to seek findings of fundamental dishonesty in personal injury cases. Many rely on Mr Justice Martin Spencer’s words emphasising the problem courts and insurers have faced with fraudulent and exaggerated claims. However, on occasion, a judge may give a judgment with all the hallmarks of fundamental dishonesty, yet will fail to draw such a conclusion.

I recently appeared for the Defendant in Zaib v Cole (at both the trial and at appeal), in which a judge’s failure to make a finding of fundamental dishonesty was successfully challenged.

Factual background

The Claimant was a taxi driver. In 2017, he and the Defendant were involved in a road traffic accident at the entrance of a hotel. Liability was admitted, however quantum remained in dispute. The Claimant claimed damages for personal injuries, vehicle repairs, credit hire charges, as well as storage and recovery charges.

A key issue between the parties was whether the Claimant should be confined to loss of profits or credit hire charges, as the Defendant had not filed basic hire rates evidence. The Defendant additionally had concerns about the Claimant’s credibility that they wished to explore at trial.

The trial

The trial came before DDJ Harvey in January 2020. The Judge concluded that the Claimant should be confined to loss of profits, as he did not accept the Claimant’s evidence that he used the vehicle for social use. The Judge did not allow storage and recovery charges. He awarded a period of 7 days loss of profits, rather than the 56 days claimed.

Crucially, the Judge was highly critical of the Claimant’s evidence in relation to the personal injuries he allegedly suffered. He not only found the Claimant unreliable, yet he considered that his medical evidence ran completely counter to the statement of truth in his Claim Notification Form. He noted the discrepancies in his evidence regarding his time off of work, the injuries he allegedly suffered and the restrictions he suffered as a result of those injuries. The Judge further described the Claimant’s evidence as being “perforated with inconsistency” and “wholly inconsistent“. He stated that the inconsistencies in his evidence “did not add up” and found that the Claimant had exaggerated his claim. Despite such findings, the Judge did not find the Claimant to be fundamentally dishonest.

The Claimant appealed the decision, as they considered that the Claimant should have received the full credit hire charges, rather than be confined to loss of profits. The period awarded and the lack of storage and recovery charges were also appealed. The Defendant cross-appealed, seeking a finding of fundamental dishonesty.

The appeal

The appeal came before HHJ Simpkiss at Guildford County Court. The Claimant succeeded solely on the ground that the Judge was plainly wrong to award a period of 7 days of loss of profits. However, when addressing the cross-appeal, HHJ Simpkiss considered that the Judge’s findings were clear that this was a claimant whose evidence was perforated with inconsistency. He referred to the judgments of Mr Justice Martin Spencer in Molodi v Cambridge [2018] and Richards & Anor v Morris [2018]. HHJ Simpkiss found that the Judge should have explained why, despite such inconsistencies, he had not considered the Claimant to be fundamentally dishonest. HHJ Simpkiss stated that it was clear to him that a claimant who put forward such an inconsistent account, who could not explain aspects of his evidence and presented a different account of his injuries to the court, had to be found fundamentally dishonest. He noted that once a claimant’s credibility had been brought so much into question, it followed that the whole claim had to be dismissed.

Consequently, he dismissed the appeal and allowed the cross-appeal. He set aside the Judge’s judgment and found the Claimant fundamentally dishonest. He dismissed the entirety of the Claimant’s claim under section 57 of the Criminal Justice and Courts Act 2015, awarding the Defendant their costs of the trial and appeal. He further ordered any costs paid to the Claimant as a result of the trial to be returned to the Defendant.

Comment

This case emphasises that parties should not be afraid to challenge a judge who heavily criticises a claimant, yet fails to find them to be fundamentally dishonest. Should a judge fail to provide full reasoning as to why they upheld the claimant’s claim despite such criticism, it is likely such a judgment can be successfully challenged on appeal.