Failing to come up to proof “does not equal” fundamental dishonesty

A failure to come up to proof and inconsistencies in the evidence did not entitle a court to conclude that a personal injury claim was fundamentally dishonest and that the protection of qualified one-way costs shifting (QOCS) should be removed, a circuit judge has ruled on appeal.

His Honour Judge Hodge QC’s ruling in Meadows v La Tasca Restaurants Ltd [2016] EW Misc B28 (CC) was given in June but has only just been published.

The claimant alleged that she slipped in the defendant restaurant. A friend gave supporting evidence. However, at first instance, District Judge Khan ruled that he did not believe what either said had happened, describing their evidence as “riddled with inconsistencies”.

He said: “In those circumstances, it is difficult to see how this is not a dishonest claim. This is not, for example, a claim where there has been a misremembering of key events, or some confusion or lack of clarity in relation to dates, events, premises or the like. The effect of the inconsistencies… was such that I simply did not believe what Miss Meadows said to me or Mrs McGrath said to me.”

As a result, QOCS protection was removed, leaving the claimant to pay costs of £7,210, plus her own disbursements as the finding invalidated her after-the-event insurance.

In considering what amounted to fundamental dishonesty, HHJ Hodge QC said he would follow the approach of His Honour Judge Moloney QC in the 2014 case of Gosling v Hailo, who said the dishonesty had to go to the root of either the whole or a substantial part of the claim.

Judge Hodge QC said: “In my judgment, the district judge was entirely correct to conclude that there was fundamental dishonesty for the purposes of CPR 44.16 if he found that, to the knowledge of the claimant and her supporting witness, the accident had never happened at all in the circumstances described by them.”

However, he found that the judge was wrong to come to this conclusion. “District Judge Khan never expressly addressed the inherent probabilities in the claimant getting together with a long-standing friend, Mrs McGrath, to concoct a false account of an accident at a restaurant at the Trafford Centre in support of a claim for personal injuries limited to no more than £10,000.

“There was nothing to suggest that either the claimant or her witness were other than thoroughly honest individuals who had never engaged in this sort of behaviour before… I am satisfied that District Judge Khan went too far, on the basis of the evidence before him, in concluding, not simply that the accident had not taken place as alleged by the claimant and her witness, but that no accident had taken place at all, and that the claim was a fabrication on the part of the claimant and her supporting witness.

“In my judgment, the district judge was perfectly entitled to say that the evidence adduced by the claimant and her supporting witness was too weak to prove the claimant’s case to an appropriate standard, and that the claim should therefore fail. District Judge Khan gave reasons for regarding the evidence before him as unreliable, and I would certainly not be justified in interfering with his conclusion that the claimant had not made out her case.

“But, in my judgment, and recognising that this does involve a challenge to the district judge’s findings of fact, with which an appeal court should interfere only with considerable reluctance. District Judge Khan’s conclusion that the claim was fundamentally dishonest falls well outside the ambit of reasonable judicial decision-making… The inconsistencies and curiosities highlighted by the judge did not entitle him to go further and to find that the claim had been fabricated, and thus was ‘fundamentally dishonest’.”

James Maxey, managing partner of Express Solicitors, which acted for the claimant, said: “This is a worrying tactic being deployed by defendants where a claimant simply fails to prove their claim at trial. If every time a claimant loses a case the defendant alleges fundamental dishonesty, the costs of cases will be greatly increased by claimant’s seeking to appeal any such findings.”

 

This post was posted in ACL e-Bulletin

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Costs News
Published date
08 Nov 2016

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