When will a Court find substantial injustice under Section 57(2) of the Criminal Justice and Courts Act 2015 – Seeking the albatross?

Introduction

Section 57(2) of the Criminal Justice and Courts Act 2015 is present to enable a personal injury claim to succeed (in full) even where a Claimant has been found fundamentally dishonest and a Court is minded to dismiss their primary claim under Section 57(1). Section 57(1) and (2) state:

“57 Personal injury claims: cases of fundamental dishonesty

(1) This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”)—

(a) the court finds that the Claimant is entitled to damages in respect of the claim, but

(b) on an application by the Defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the Claimant has been fundamentally dishonest in relation to the primary claim or a related claim.

(2) The court must dismiss the primary claim, unless it is satisfied that the Claimant would suffer substantial injustice if the claim were dismissed.”

At present:

(i) No claim has succeeded under Section 57(2).

(ii) No Judge has given any specific example of a case in which they think a claim under Section 57(2) should succeed.

In these circumstances, this article considers when an application under Section 57(2) might succeed.

Background

There are four broad ways in which a Claimant might seek to meet the challenge of a Defendant properly alleging fundamental dishonesty in a personal injury claim:

(i) It might be accepted that there has been an exaggeration, but the exaggeration is not dishonest, considering the test detailed in Ivey v. Genting Casinos [2017] UKSC 67. This has been an initially popular way for a Court, which has sympathy for a Claimant, circumventing the effects of Section 57(1). This is seen in cases such as:

• • Elgamal v. Westminster [2021] EWCK 2510 (Jacob J), in which a number of exaggerations, including a limp which the Defendant alleged constituted dishonesty, was found to constitute exaggeration but not dishonesty.
  • Smith v. Ashwell Maintenance [2019] 1 WLUK 541, in which a degree of “embellishment” was found not to be dishonest.
  • Michael v IE and D Hurford [2021] EWHC 2318, in which the Court found the Claimant not dishonest despite claiming for a number of physiotherapy sessions when he had only been to one.

(ii) It might be found that the dishonesty did not relate to matters in the claim. In Cojanu v. Essex Partnership University NHS Trust [2022] EWHC 197, the Claimant had been dishonest about the circumstances of his originating injury, which gave rise to the need for clinical treatment, but this was not found to affect the clinical treatment being delayed, which was the negligence complained about in the action.

(iii) It might be found that dishonesty is not fundamental to the claim. In Fafriyie v. Commissioner of Police [2023] EWHC 1632 (Hill J), there was an issue as to whether the Claimant was dishonest as to the circumstances of an incident in which the Claimant was arrested, but the Court found that in any event, the issue did not go to the heart of the claim.

(iv) Section 57(2).

The Court’s Approach to efforts to avoid findings of fundamental dishonesty

As time has passed since the bringing into force of this legislation, the willingness of Courts to find fundamental dishonesty has increased, particularly following appeal decisions determined in the High Court overturning initial County Court decisions and views expressed by well respected High Court Judges

• Sinfield v. LOCOG [2018] EWHC 51, in which the forging of invoices to support a claim for loss of services in the sum of £14,000 led to the Appeal Court to dismiss the claim (Julian Knowles J)
• Pegg v. Webb [2020] EWHC 2095, in which Spencer J overturned a first instance decision as to whether the Claimant was dishonest when the Claimant had failed to mention relevant matters in seeking medical assistance shortly after this incident.
• Muyepa v Ministry of Defence 2022 EWHC 2648 in which Cotter J placed significant importance on the motive behind the exaggeration and differentiated between exaggerating to try to make a point (such as to speed up treatment) and exaggeration simply aimed at increasing the value of the claIm.

These decisions, in my view, have promoted a greater willingness by Junior Courts to find fundamental dishonesty if it directly relates to a substantial part of the claim and that has led to an increasing need for a Claimant, if they are to succeed, to rely on Section 57(2), but so far without success.

Williams-Henry v Associates British Ports [2024] EWHC 3806 (Ritchie J)

The trend of robust decisions set out above has been followed further in the recent case of Williams-Henry in which a claim, which had a full valuation of over £900,000, was dismissed on the grounds of fundamental dishonesty in circumstances where there was no dispute that the Claimant had a serious head injury and that the Claimant had had depressive symptoms subsequent to the litigation commencing which led to her having a suicidal ideation. However, even taking into account these factors, it was found that the Claimant had comprehensively lied on a range of different issues. This was despite the Court thinking the Claimant’s rehabilitation had not been assisted by her experts or her case manager. The Court having made a finding of fundamental dishonesty Ritchie J then turned to consider Section 57(2).

The previous view of Knowles J in Sinfield had been that it was for a Court to consider the question of substantial injustice as a jury question for a Judge to determine.

Ritchie J believed a more formalised approach to Section 57(2) was required and set out eight factors that he regarded as critical:

1) The amount claimed when compared with the amount awarded.

2) The scope and extent of the dishonesty.

3) The effect of the dishonesty on the construction of the claim (ie, how much of the work on the case related to the area of the case which had been affected by the dishonesty).

4) The scope and extent of the Claimant’s genuine injury. This could include assessment of whether the Claimant might need help from the state which the Court thought would be unjust on the taxpayer.

5) The nature and culpability of the Defendant’s tort.

6) The costs position if the claim was not dismissed. If the Claimant would be subject to a substantial adverse costs order this would be a factor against invoking Section 57(2)

7) The size of any interim payment and whether the Claimant would be able to afford to pay them back.

8) The effect of dismissing the claim on the Claimant’s life including whether the Claimant will be able to stay in their property/ have to rely on state services.

Ritchie J determined that:

(i) The loss of a substantial claim was not necessarily a “substantial injustice”.

(ii) The risk of the Claimant committing suicide was caused as a result of her reaction to her dishonesty rather than having a separate cause.

(iii) There was no suggestion that the Claimant was likely to need the state to look after her.

(iv) The dishonesty was wide-ranging.

After running through all eight of the guidelines he gave, he reached the view that the claim should be dismissed. This adds to and confirms the views that have been expressed in other cases determined which have been well reported:

Sinfield v. LOCOG [2018] EWHC 51

Sudale v. Cyril John [2021] 2 WLUK 623

Iddon v. Warner [2022] EWHC 90

Woodger v. Hallas [2023] EWHC 1561

Mayupa v. Ministry of Justice [2022] EWHC 2649

These cases, including Williams-Henry, detail arguments had been pursued on the basis that the dishonesty was not very substantial (See Sinfield), that those that provided care would lose out (See Iddon), that the loss of the case was disproportionate to the amount of dishonesty involved (See Mayupa, Woodger), that the Defendant was dishonest (See Sudale) and that the finding might lead the Claimant to commit suicide (See Williams-Henry). The general view has been to enforce a high bar in allowing claims to succeed under Section 57(2) and repeat what Knowles J said in Sinfield that:

“Substantial injustice must mean more than the mere fact that the Claimant will lose his damages for those heads of claim that are not tainted with dishonesty”.

Williams-Henry is the first case to explore Section 57(2) in more substantial depth.

Thoughts on Williams-Henry

(i) Whilst this is a very detailed judgment and provides clear guidance, there may be some issue as to whether it is legally correct in that section 57(2) mentions only “substantial injustice to the Claimant”. It might be thought the nature of the Defendant’s tort, issues relating to the preparation of the case and the position of the taxpayer are some distance away from being relevant to whether the Claimant will suffer substantial injustice if the claim was dismissed.

(ii) The case may lead to Defendants wishing to plead fundamental dishonesty at an earlier time so as to avoid the prospect of interim payments being made which might be considered relevant to the issues as set out by Ritchie J. In Williams-Henry, the Defendant avoided this being contentious by not seeking payment of the interim payment of £75,000 that had been made. In Mehmood v. Mayer [2024] EWHC 1057 (Master Fontaine), the Court found that a pleading, with some substance, of fundamental dishonesty would be grounds for refusal of an interim payment.

(iii) On the basis of the likely findings as to costs, it would appear difficult, if Ritchie J’s analysis is followed, that Section 57(2) will apply to smaller cases (perhaps those worth less than £100,000).

(iv) It appears that the cases which are most likely to lead to a finding under Section 57(2) could be:

– If there was a dishonest claim for special damages in a large claim which did not touch on the issues relating to future losses. This could be seen as touching on the whole claim so as to be fundamentally dishonest but not altering the view that there would be a large claim and substantial injustice in dismissing it.

– If the Claimant had health problems which could be seen as causative in part on the Claimant’s dishonesty or which were caused by the incident and/or might be aggravated by a finding of fundamental dishonesty.

– If the effect of the dismissal of the claim would mean substantial public funds needed to be spent on looking after the Claimant which might also mean the Claimant was less well looked after when needing considerable help.

– If there was a horrendous crime which constituted the tort.

It is suggested that in these circumstances, some of the factors which initially led some Courts to determine that Section 57(1) did not apply (eg limited dishonesty, limited effect on the claim) might be used so as to assist the Claimant under Section 57(2), noting that:

(i) The Defendant’s insurers are paid money to meet the risks that have taken place.

(ii) The Claimant has sustained, on any view in cases such as this, substantial injury.

(iii) The section must have some purpose.

However it will be a bold Claimant to proceed with a claim on this basis as the hurdle to prove substantial injustice is clearly a very high one. It may be that if the Claimant admits at trial he has been dishonest this may be a relevant factor which may also be relevant to the matters detailed by Ritchie J.

The search for the albatross continues!

Postscript

When such a substantial claim is dismissed, which some may regard as inequitable (even if it is the correct application of the current law), it is to be wondered whether those formulating the law may consider introducing an amendment to Section 57(2) so as to avoid this issue being an “all or nothing” one. In the CICA, there is a mechanism for reducing the claims by a percentage in circumstances where it is appropriate for public policy reasons to do so (conduct and previous convictions). Might thought be given to instituting a similar system in civil law, particularly on high value cases?