The Dekagram: 18th May 2026

This week Charlie Stonehill considers a difficult philosophical question: is there any distinction between not telling the truth and lying? Readers will readily appreciate that the question is not just an abstract one; the answer to it matters for the purposes of QOWCS and other costs considerations. The team is also looking forward to a trip to Barcelona, where Dominique Smith will be chairing a session at the PEOPIL joint mass torts and product liability/women in law conference. If you’re attending, do come and find us – Bethany Hutchison will also be in attendance and will be delighted to meet you.

Exaggeration, Dishonesty, or Both?

This article discusses the recent case of Antuanya v Ministry of Defence [2026] EWHC 758 (KB). The case serves as a reminder both to Claimants and Defendants alike as to the strict approach that the Court will take in applying CPR 44.16 to disapply the provisions of QOCS, where the Claimant has been found to be fundamentally dishonest. It also provides helpful guidance when considering how psychiatric or psychological conditions may distort the boundaries between genuinely held, but mistaken, beliefs and dishonesty.

Facts

The Claimant was a former soldier in the British Army, and he had served for over 14 years, which included deployments to Afghanistan, Iraq and Belize. Within his years of service, he had spent time in roles such as being on an active guard duty which on occasion exposed him to cold conditions. In December 2015 he reported numbness in his fingers and toes after guard duty, and by 2016 he had been assessed at a cold injury clinic and provided with workplace restrictions relating to cold exposure.

In May 2022, the Medical Board within the Army listed three principal conditions which affected his medical employment standard within the Army: Non-freezing cold injury (NFCI), depression, and other mental health conditions. He was medically discharged in January 2023.

The Claim

The Claimant brought the Claim in 2023, with particulars which alleged negligence/breach of statutory duty for “failing to protect him adequately against cold injury,” putting the NFCI at the heart of the claim, but the Claimant further alleged that the NFCI went on to cause psychiatric/psychological symptoms leading to his medical discharge from the Army. The Claimant served an updated Schedule of Loss later in October 2024 totalling over £375,000, which included a £150,000 claim for disadvantage on the open labour market as he was “unfit for any career which requires him to work outdoors or in a cold environment.” It was common ground that the Claimant had suffered an NFCI, but that the impact on the Claimant would have been negligible. The basis of this claim was therefore rooted in the symptoms that the Claimant (allegedly) had from the NFCI.

The Claimant attended multiple expert assessments before and after he issued his claim. At one assessment in March 2024, the Claimant reported to the expert that he was having pain in his feet, he was limping with antalgic gait in both feet, he had pains in his hands on exposure to cold, poor grip strength and mentioned how he wore “additional warm clothing most of the year even on warm summery days.” He attended another expert appointment on the same day where he displayed similar symptoms.

Unbeknownst to the Claimant, he was subject to surveillance at the request of the Defendant. The footage taken the very next day showed (amongst other things) the Claimant:

1. Wearing only a t-shirt outside with no additional layers (despite it being a similar temperature to the day before).
2. Walking normally a good pace and without a limp.
3. Manoeuvring his wheelie bin.
4. Driving for 75 minutes (having told experts that he no longer drove).
5. Hugging and shaking hands with others.
6. Climbing stairs.

In July 2024, the Defendant, in light of the footage and the collective view of the experts that there was no medical explanation for the difference in the Claimant’s presentation, filed and served an amended defence alleging that the Claimant had been fundamentally dishonest by: 

1. Claiming that he wore excessive warm clothing all year due to his sensitivity to the cold.
2. Walking with a slight limp to convince the experts of a serious NFCI condition.
3. Telling experts he could not drive.
4. Making claims in his witness statement which were inconsistent with the footage, namely the level of his pain, his ability to drive, and his ability to walk up stairs.

In November 2024, the Claimant discontinued his claim. The Defendant sought the Court’s decision as to whether the Claimant had been fundamentally dishonest for the purposes of QOCS.

Judgment

Whilst noting that the Claimant had suffered from a psychiatric illness, the Judge found that the Claimant had been “exaggerating the physical difficulties he has faced in order to convince experts and others of the extent to which he is suffering.”

The central finding of fundamental dishonesty related to the exaggeration of his sensitivity to the cold, such that he required warm clothing all year round. As the Judge aptly states at [152]: “I cannot see what the Claimant was thinking but I can see what the Claimant was wearing.” At the September and March appointments, the Claimant had arrived in many layers, and repeated the need for additional layers throughout the year. Yet, the very next day (after the March appointments) he was seen only wearing a t-shirt outside for several hours. At [157] the Judge concluded that the Claimant had “deliberately overstated” the need for warm outdoor clothing all year round, and that telling the expert of this need was fundamentally dishonest.

The Judge therefore disapplied the QOCS protections and made a costs order against the Claimant.

Comment

This case can provide helpful assistance to both Claimant and Defendant practitioners when navigating the issue of fundamental dishonesty:

First, it provides some guidance in navigating fundamental dishonesty where the Claimant demonstrates a mental illness or condition. The Judge found that the Claimant did have a “genuine mental illness,” and indeed this formed part of the discussion amongst experts at an early stage. For instance, one expert [37] mentioned that the Claimant’s depression had such an effect that “makes his perception of pain worse, which in turn perpetuates his depression.” Another noted [39] that the deterioration in his symptoms could have been getting worse due to the deterioration of depression. In such circumstances, it’s plausible that a Claimant may have a belief as to their symptoms which, whilst being inaccurate, does not automatically make it dishonest. The same principle also applies to memory, insofar as oral evidence at trial is inconsistent with contemporaneous evidence. In such circumstances, it is important for practitioners to remember the first limb of dishonesty (Ivey v Genting Casinos (UK) Limited [2017] UKSC 67 at [74]), namely, to ascertain the “actual state of the individual’s knowledge or belief as to the facts.” Where a recognised mental condition is present, so is the possibility that the actual state of knowledge or belief of that individual negates dishonesty, notwithstanding that it appears at face value to be dishonest. 

Secondly, the case explores the difference between conscious and unconscious exaggeration insofar as it applies to dishonesty. Unconscious exaggeration can commonly be found in loose language or phrases which are not meant to be taken literally but convey in some part some genuine suffering. As the Judge points out, the phrase “I never get out of bed” really means “I rarely get out of bed.” In such circumstances, the Claimant saying the former would not be dishonest if it was their knowledge and belief such that they are not intending to be taken literally, rather they are trying to convey their suffering in an exaggerated turn of phrase. As a practical point, the risk of this arising in proceedings can be easily avoided by omitting such “loose language” from pleadings, witness statements and in how the Claimant reports their symptoms to an expert.

On the other hand, conscious and deliberate exaggeration would meet the threshold for dishonesty, as the Claimant demonstrated in this case. He knew he did not need all of the extra layers of clothing, as evidenced by wearing only a t-shirt the very next day in March. Yet he told the expert that he did, to exaggerate his sensitivity to the cold. This went to the very heart of the claim as he sought a Smith v Manchester of £150,000 for the inability to work outdoors in the future. Therefore, he was fundamentally dishonest.

Thirdly, and finally, it is a stark reminder as to the obligation of legal representatives to always have a watchful eye on the horizon for dishonesty. In his concluding remarks, the Judge was critical that the Claimant, having previously been legally represented, had done himself “no favours” in allowing the claim to progress seeking such high sums of money for a very mild injury. That is especially the case with Defendants demonstrating a growing appetite to pursue applications for fundamental dishonesty. In this case, the Defendant accepted that they may not ever recover the costs from the Claimant, and therefore they would suffer an increased loss regardless. However, the appetite to incur that loss was fuelled by “a plague of NFCI claims” that were manifesting against the Defendant, and their genuine desire to “send a message” to anyone thinking of pursuing a dishonest claim in the hope of speculative settlement.

About the Author

Charlie Stonehill was called in 2021 and joined Deka after successfully completing pupillage in January 2026. He now undertakes work across all of chambers’ practice areas. In his spare time he enjoys participating in and attending sport, music performances, and theatrical productions; and enjoying good food.