The Dekagram: 24th November 2025

This week Andrew Spencer recounts a quite extraordinary tale, as does Francesca O’Neill, making Julia Brechtelsbauer’s contribution to the Dekagram seem positively sane in comparison.

Fundamental Dishonesty – Fundamentally Disastrous Outcome

North Lincolnshire & Goole NHS Foundation Trust v Kae Burnell-Chambers, Tipples J, 14^th October 2025.

The extremely serious consequences of bringing a dishonestly exaggerated claim are demonstrated by a recent sentencing of a dishonest claimant to 26 weeks in prison for contempt of court. 

In the underlying claim, the Claimant alleged that the hospital trust were negligent in failing to identify and treat cauda equina syndrome. The trust made a limited admission of breach of duty, but denied causation contending that the consequences of that breach were limited. The Claimant claimed over £3 million for loss of earnings, care and future accommodation and household trusts.

The Claimant attended medico-legal appointments presenting as being “highly disabled with limited mobility and walking with a stick”. But surveillance evidence showed that, on one such day, she was able to walk fast and unaided, yet failed to tell the experts.

Once exposed, the Claimant admitted fundamental dishonesty and discontinued the claim. The Defendant brought committal proceedings, in the course of which further evidence of dishonest exaggeration came to light.

The Claimant pleaded guilty to contempt, on the basis that she had “good days” with near-normal function, and “bad days” when she considered herself disabled. The Claimant accepted that the failure to refer to the “good days” was misleading and caused her evidence to be untrue. The Claimant also accepted that, when she saw experts on “good days”, she deliberately attempted to present as how she perceived herself on “bad days” and deliberately feigned her presentation.

The judge considered that the Claimant’s culpability was high and the offending was at a serious level. A 12-month sentence would be the starting point.

In mitigation, the Claimant had no previous convictions. She had apologised, albeit 18 months into the committal process. The Claimant had a (modest) genuine claim which she had now forfeit, and did suffer some degree of disability. The Claimant was a single mother of a 14-year old son, whom she home-schooled, and if she went to prison other family members would need to look after him, with local authority support if necessary.

This mitigation adjusted the starting point of 52 weeks to 33 weeks. And 20% further credit was given for the guilty plea.

But the judge refused to suspend the sentence. So serious was the contempt that it outweighed the impact of the mitigation, including the effects on the Claimant’s son.

This is a clear illustration of just how seriously the courts take fundamental dishonesty and the devastating results there can be where a person chooses to exaggerate their claim.

About the Author

Andrew Spencer was called to the Bar in 2004, and is listed in the Legal 500 as a Band 1 practitioner in travel law. He acted for the Claimant in the seminal case of Japp v Virgin Holidays Limited [2013] 11 WLUK 131, in which the Court of Appeal considered the time at which applicable local standards should be determined for the purposes of liability under Regulation 15(2) of the Package Travel Regulations; but he is equally comfortable acting for Claimants and Defendants in all travel related claims.

Trouble in Paradise? Full Refunds, Punitive Damages and Pool Demolition 

On 23^rd October 2025 the CJEU handed down a judgment concerning the Package Travel and Linked Travel Arrangements Directive 2015 C-469/24 (B.F. v Z. sp. z o.o.). Although the decisions are technically not binding in the United Kingdom, they of course remain very persuasive authority, and we are given some interesting insight from the CJEU as to various provisions because of this preliminary ruling.

A request for preliminary ruling was made from the District Court in Poland. The facts concern a holiday from Poland to Albania in a five-star hotel between 1^st September and 8^th September 2023. On the first day of the stay the applicants in the proceedings were awoken by work demolishing the hotel’s two swimming pools. The work lasted until the fourth day of their holiday and went on all-day from 7:30am to 7:30pm – not quite the relaxing break they were after. As a result of the work, the pools were demolished as well as the seafront promenade, paved waterfront with access to the sea and waterfront infrastructure. The work had been commissioned by the Albanian authorities. The applicants had made their claim under the equivalent of the package travel regulations in Poland.

The defendant organiser argued that since the demolition work in question was the result of a decision by the Albanian Authorities with which it had to comply it therefore was placed in unavoidable and extraordinary circumstances attributable to a third party.

The following questions (summarised!) were part of the preliminary reference:

1. Must the provision of Article 14 (3)(b) [the source of Regulation 16 of the PTRs 2018] and Article 4 of the Directive be interpreted as precluding an application of national Polish law which requires the travel organiser to demonstrate that the lack of conformity was the fault of a third party unconnected with the provision of travel services included in the package travel contract where such lack of conformity was unforeseeable or unavoidable?
2. Must Article 14(1) of the Directive be interpreted as not precluding an interpretation of national law where a price reduction can result in a full refund, even though travellers had used part of the services provided by the organiser?
3. Must the provisions of Article 14(1) and (2) be interpreted as meaning that a price reduction for lack of conformity / claim for compensation resulting from lack of conformity are intended to “restore contractual balance between the parties” or are those claims also “punitive and meant to deter the organiser from allowing the lack of conformity to occur”?
4. Must the provision of Article 3(12) of the Directive be interpreted as meaning measures taken by public authorities, including a decision issued by a government representative to demolish a hotel, do not fall within the concept of unavoidable and extraordinary circumstances?

The CJEU answered as follows:

1. The provision of Article 14(3)(b) allows a travel organiser to “exonerate itself from its obligation to pay compensation to a traveller, in the event of a lack of conformity of the services provided, if it demonstrates that that lack of conformity is attributable to a third party” – it is not necessary to show the fault of a third party.
2. As to price reduction it must be “appropriate for the entire period during which there was a lack of conformity” and in assessing the price reduction it is an “objective” exercise. The price reduction caused by inadequate services provided does not relate only those explicitly included within the contract, but also “those linked to it as a result of the purpose of the contract”. The more serious the failure, the greater the reduction. However, due to the high level of consumer protection within the directive, a traveller can be entitled to a full refund even where some services have been provided where “the lack of conformity of the services is so serious that that package no longer serves any purpose, and therefore, the package travel is objectively no longer of interest to the traveller”. In fact;  “Where that lack of conformity is so serious as to render the services that have been provided of no interest and of no value in the light of the purpose that package, that lack of conformity is in fact equivalent to a failure to perform that package, which confers a right to a full refund of the price of that package, pursuant to Article 14(1) of that directive.”
3. Article 14 (1) and (2) are to restore the contractual balance “in that it makes it possible, first, to require travel organisers to re-establish a price which corresponds to the services actually provided and, second, to obtain compensation from those organisers for the damage sustained by the travellers concerned as a result of the lack of conformity of the services provided.” There is no provision to be penalised for lack of conformity. Even the “high level of consumer protection” of the Directive cannot stretch that far.
4. As to this question, the CJEU essentially said, “yes, possibly” but “it depends” and “probably unlikely” – a fairly typical response we see in law. Specifically, it said:
   1. “measures taken by a public authority can come within the concept of ‘unavoidable and extraordinary circumstances’, within the meaning of Article 3(12) of Directive 2015/2302, only if those situations are beyond the control of the party invoking them and have consequences which could not have been avoided even if all reasonable measures had been taken, which means that those circumstances are beyond the control of the party invoking them and are unforeseeable.”
   1. “The adoption of measures by a public authority is generally governed by both procedural and substantive rules ensuring, inter alia, that those measures are adopted in a transparent manner following a balancing of various interests. The implementation of those measures is, moreover, generally preceded by some publicity. Situations resulting from the adoption of such measures are generally not, therefore, unforeseeable.”
   1. Therefore, on the facts, it was seemingly unlikely that it would apply. Indeed, the CJEU gave the Polish Court quite a heavy hint in that regard: “it will be for the referring court to determine whether, prior to the adoption of that decision, that organiser or the manager of the tourist infrastructure in question was notified of the procedure which led to the adoption of that decision, or even participated in that procedure, or whether those persons were informed of the content of that decision before it was implemented.”

Overall, therefore, it is a mixed bag:

• For Claimants, they can be entitled to a full refund if the purpose of the holiday is entirely undermined even if they did enjoy some services, but they cannot go so far as to receive punitive damages.
• For Defendants, they may end up paying out a full refund despite providing some services, albeit not hit with punitive damages.
• As a result, there is likely to be argument about whether the entire purpose of the holiday is undermined.

It is interesting that relying on the third-party exception does not require proving fault on the part of the third party, but it must be truly a “force majeure” adjacent situation.  It is becoming increasingly difficult to imagine scenarios which this defence could actually apply.

About the Author

Julia Brechtelsbauer gained tenancy having completed pupillage at Deka Chambers. Before coming to the Bar, she took an LLM in Comparative Private Law at the University of Edinburgh, and during this time she also tutored tort and EU law privately at undergraduate level. Studying Law with Spanish Law at the University of Oxford, Julia came first in her cohort in EU Law and Comparative Private Law, placing 5th overall. She has also been published by the Oxford University Undergraduate Law Journal, focusing on the defence of illegality in tort law. She has already been led by Sarah Prager KC in a paraplegia case involving complex issues around assumption of responsibility and is developing a thriving practice in international work.

Wasted Costs: the Final Frontier

Some of you may recall a recent article in which a claim form, improperly served, was set aside. The Defendant had made a timely application contesting jurisdiction, and the Claimant’s solicitors had refused to accept that serving the claim form at Clyde & Co’s London office when they did not have written permission to do was wrong. Notably, the correct application to retrospectively correct defective service had not been made. An oral application on the day, prompted by the Defendant’s skeleton argument, was not considered. The claim form had expired unserved, and the claim came to abrupt end. 

So far, so good. The problem is that it costs money to make these applications. You need to make the application, draft and put in a detailed witness statement, instruct Counsel, etc. If the claim form is set aside, rather than struck out, the Claimant does not lose QOCS protection and the applying party simply has to bear their costs with no prospect of being granted permission to enforce. That doesn’t seem fair, where there is almost no space at all between a successful strike out and an application to set the claim form aside for procedural reasons. 

In fact, it is arguable that this is wrong. CPR r.44.15(c)(ii) provides an exception to the “no enforcement rule” if the claim has been struck out because of the Claimant’s representative’s actions amounting to those which obstruct the just disposal of the claim. In failing to serve the claim form properly, and then in failing to make the appropriate application  (under CPR r.6.15), and then in failing to succeed in any application made, just disposal was obstructed. The test is met. However, this argument has been met with judicial disapproval in circumstances where, because the claim form has been set aside, there is no claim in existence at all. 

The only other way to recover costs as a consequence of a failure to properly serve the claim form is by a successful wasted costs application. These a rare, and the threshold is high. However, there is an argument that solicitors who fail to serve the claim form and who then fail to do anything about it that might set things right are sufficiently lax in their approach to litigation that payment of otherwise irrecoverable costs is a clear answer. After all, it doesn’t seem right that a Claimant should be personally liable either, in circumstances where they have placed trust in an allegedly competent lawyer to pursue their claim. 

That is precisely what happened in this case. An oral application for the solicitors to show cause why they should not be personally liable for the Defendant’s wasted costs was made and granted at the initial set-aside hearing.

Under s. 51(6) Senior Courts Act 1981, the court can order “the legal or other representative” to meet all or part of any “wasted costs”, which are defined in s. 51(7) as “any costs incurred by a party (a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative;…”.

The meaning of “improper, unreasonable or negligent” was authoritatively established in Ridehalgh v Horsefield [1994] Ch 205, CA at 232. Essentially, “improper” means conduct which would be regarded as improper by the consensus of professional opinion. “Unreasonable” means not permitting of a reasonable explanation and includes conduct which is vexatious or “designed to harass the other side rather than advance the resolution of the case”. “Negligent” means “[failing] to act with the competence reasonably to be expected of ordinary members of the profession”. 

There have been two recent High Court cases which have drawn together the principles within the leading authorities: King and others v Stiefel [2023] EWHC 453 (Comm), at [69] – [72] per Jacobs J; and Williams-Henry v Associated British Ports [2024] EWHC 2415 (KB) at [22] per Ritchie J.

In Williams-Henry, Ritchie J said: “The first stage is a triage in which the Applicant must prove a prima facie case which gets over the threshold of the balance of probabilities, that one or more of the 3 IUN grounds arises; that the IUN caused specified wasted costs and that it would be just to make the Respondent pay and that it is proportionate in costs to pursue the WCO. This stage is generally accusatory, not defence focussed. If the Court is satisfied that, if unanswered, the Applicant’s evidence is “likely” to lead to a WCO, then notice is given to the Respondent franchising it to put in evidence and answer the allegations.”

The wasted cost regime is neither a punitive nor a regulatory jurisdiction but rather a compensatory one. A person seeking orders for wasted costs must show that the conduct complained of has caused them loss. Even if the Court is satisfied that a legal representative has acted improperly, unreasonably or negligently and that such conduct has caused the other side to incur an identifiable sum of wasted costs, it is not bound to make an order, but in that situation it would of course have to give sustainable reasons for exercising its discretion against making an order.

There could be no doubt in this case that the Claimant’s solicitors met the “IUN” threshold, and the Stage 1 threshold had been met. What happened next? Well, you might not believe this, but a witness statement served by those hapless solicitors contained non-existent citations…. and also confirmed a series of serious failings. Essentially, the argument was that their handling of the claim had been bad, but not so bad as to attract a wasted costs penalty. This was not attractive by itself, but it was the hallucinated authorities that really put the final nail in the coffin. 

The reliance on fake or hallucinated citations is a serious example of professional misconduct. Readers will be aware of the recent comments of the Divisional Court in Ayinde v Haringey [2025] EWHC 1383 (Admin). Reliance on the hallucinated citations of, for example, ChatGPT or another AI tool without checking it must lead the Court to consider whether the relying party should be referred to a professional regulator, whether there has been a contempt of court, or whether a WCO should be made. 

Wasted costs were agreed at more than £32,000 at the door of the court, and upon receipt of the Defendant’s skeleton argument (which had, bafflingly, not been provided to the solicitor’s Counsel ahead of time!). 

Francesca O’Neill, instructed by Nicky Clench at Clyde & Co, acted for the successful defendant in this case.

About the Author

Francesca O’Neill was called in 2012. She is highly ranked by both major legal directories across her practice areas. They say she “is an absolute pleasure to work with”… “a fierce and meticulous advocate with technical and procedural expertise at her fingertips” known for ”powerful and clever advocacy, capable of blowing other advocates out of the water”. In 2020 Francesca was appointed to the Attorney-General’s Panel of Counsel and is instructed by the Government in a range of cases – particularly those that involve vexatious litigants and that require civil restraint orders (see for example Soeb v Secretary of State for the Home Office [2021] EWHC 3403 (QB), Morrell v Health & Safety Executive [2022] 6 WLUK 142).