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Articles | Thu 15th Sep, 2022
Jenkinson v Robertson  EWHC 756 (Admin)
What constitutes procedurally fair “adequate notice” of an allegation of fundamental dishonesty (“FD”)
The first instance judge found the Claimant, a litigant in person allegedly injured in a road traffic accident in 2013, to have been FD with the effect of triggering section 57 of the Criminal Justice and Courts Act 2015 (“Section 57”).
The Defendant raised FD for the first time at trial, not having previously given express notice of its intention to do so. Its pleaded case merely put the Claimant to proof on the injuries and symptoms, however in correspondence the Defendant had asserted that the claim was “exaggerated” and “unreasonable”.
As a matter of procedural fairness, and following decisions like Howlett & anor v Davies & anor  1 WLR 948 and Mustard v Flower & ors  EWHC 846 (QB), Claimants must be given “adequate notice” of the Defendant’s intention to allege FD. The first instance judge in the index case considered that such notice had been satisfactorily provided by the Defendant.
This decision was overturned on appeal by Mr Justice Choudhury.
“I emphasise that nothing in the foregoing is intended to detract from the modern “cards on the table” approach. Where the Defendant does have a proper basis for a plea of fundamental dishonesty and intends to apply under section 57 , then, subject to the direction of the judge dealing with case management or the trial judge, that should ordinarily be set out in a statement of case or a written application and that should be done at the earliest reasonable opportunity. What I am intending to discourage are pleas of fundamental dishonesty which are merely speculative or contingent.” (my emphasis)
“It is clear from these authorities that in an application under s.57 of the 2015 Act:
Steven Lee Woodger v Reece Hallas  EWHC 1561 (QB)
Meaning of “substantial injustice” in section 57 CJCA 2015
The Claimant was seriously injured in a road traffic accident in 2014 and suffered genuine losses. The first instance Judge found that despite the genuine parts of his claim, he had dishonestly exaggerated the functional effect of his injury and concealed past earnings, thereby engaging Section 57. The Defendant sought that the claim be dismissed, as per the operation of Section 57(2) which directs: “The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.”. The Judge however declined to do so on the basis of the “substantial injustice” the Claimant would suffer. He would lose the considerable genuine part of his claim, assessed at just under £50k, and the third parties who had provided him with care would miss out on recompense.
This decision was overturned on appeal by Mr Justice Julian Knowles.
Shaw v Wilde  5 WLUK 514
How to resolve costs following the liability hearing in a split trial case in which there is a live FD allegation
The claim arose out of a road traffic accident in 2018, and in due course a split trial was ordered. Liability was determined wholly in the Claimant’s favour and he sought an order that the Defendant paid his costs of the liability issue. The Defendant argued for these costs to be reserved until the conclusion of the case. Its pleaded case included an allegation of FD on the basis of exaggerated disability and symptoms, the Defendant having obtained surveillance evidence. This allegation was not relevant to the liability evidence but would be explored during the quantum hearing.
Mr David Allan QC ordered the costs to be reserved to the Judge determining quantum, on the basis that unless there was no real prospect of a finding of FD or that there was bound to be a finding of substantial injustice then it would be premature to make a costs order at this stage.
The determinative test was whether there was a “real prospect” of an FD finding, and Claimant counsel had conceded as much in a skeleton argument. Moreover the Judge was “not in a position to conclude that the Claimant will establish the substantial injustice provision”.
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