Fundamental Dishonesty; The power in a question?

Mon, 24 Jan 2022

The High Court has again had cause to consider the question of whether a claimant is fundamentally dishonest in Palmer v Mantas & Liverpool Victoria Insurance Co Ltd [2022] EWHC 90 (QB). Anthony Metzer QC was asked to find that the claimant had been fundamentally dishonest in the conscious exaggeration of her claim.

As is often the case, any genuine claimant is going to have inconsistencies in account where there are various different points over a course of years that they are asked to give an account of symptoms. As the judge noted at paragraph 66 “if she was wholly consistent every time, that would itself tend to be suspicious.”  The claimant had 22 medico-legal examinations over 5 years, provided 6 witness statements and had undergone numerous medical investigations over that time and before, no doubt resulting in voluminous medical records. The judge set out various features of why in this case the inconsistencies were explicable and so why she was not fundamentally dishonest. Several tie closely together and are the reason for this article.

Firstly the differences in recollection that are inevitable with the human memory. Secondly the character of the claimant as a reserved individual who would not volunteer information over and above what she is asked. Thirdly the nature of the condition the claimant was suffering from itself. Fourthly, the purpose of the document that contained the inconsistency, specially here a draft witness statement aimed at cognitive and behavioural symptoms and so silent on physical abilities. Fifthly, the focus of the varying experts not necessarily touching on specific issues, such as ability to socialise after an accident, leading to little mention of that issue in their reports. Sixth, the subjective focus of the claimant herself on what was concerning for her at the time of an examination or statement. Seventh, the subjective use of language in the context of different individuals. By way of example, in this claim it was instructive that in relation to a reduction in running, pre-accident she had been in marathon training but post-accident struggled with a 10k. Speaking from personal experience, one person’s ‘short run’ would be more running in one go than I do in a year (ok, years).

These matters all come to a climax in the medico-legal appointments, where the defendant insurer suggested the claimant had withheld her level of functioning. The judge rejected this. The claimant responded to the questions she was asked, which was both reasonable and in keeping with her character. As the judge noted, taking over and controlling medical examinations is itself capable of being cast as trying to achieve deliberate control of the narrative. In information relating to bike riding, whilst one medico-legal report recorded the claimant as saying she was “absolutely incapable” of it and that she “does not ride a bike”, the claimant and expert both explained that the questions and answers were in the present tense. At the point of the examination it was entirely true and the actual question answered entirely truthfully.

Finally it is worth drawing attention to what was said in an assessment by the case manager. The assessment report painted a picture of a level of functioning far less than all the other evidence suggested. The judge accepted the unchallenged evidence of the Claimant’s mother that the case manager asked “for a description of her symptoms on her worst day”, which would of course be why the picture was so different from all the other evidence. This was especially in the context of the fluctuating condition the claimant actually suffers.

It is striking that so much of the apparent inconsistency can be explained in terms of what the claimant was asked at different points in time.  That includes the purpose of the questions giving rise to the document, be it witness statement, assessment or medical report, or the tense the question was asked in, or the actual question asked. One of the whole reasons that trial advocates exist is that one of their most useful skills, honed by years of experience, is the ability to ask questions. The ability to ask them in a certain way. The ability to get a certain answer. Our questions are, or should be, deliberately phrased to lead to a certain answer, hopefully one helpful to our case. However, everybody asks questions. Those questions are asked differently based on their own use of language and experience. Furthermore the questions can be understood differently based upon the use and understanding of language of the person being asked. We can then add into this the difference in the purpose of questioning between treating clinicians and medico-legal experts (let alone medico-legal experts ‘favoured’ by one side or another). The information being elicited is for very different purposes and the question by treating clinicians may include the use of what lawyers would consider ‘leading’ questions because they want to know specifically if certain symptoms are present. Yet left to their own devices, a claimant may describe the same symptom differently because of their own use of language.

That is before we even consider the recording of the answers given. These depend again upon the use of language and understanding of what is said by the person answering and person recording the answer respectively. The issue may be even more acute when we consider the medico-legal reports in low value cases where there is a degree of fitting the answer into one of the formulaic, standard responses that lose the nuance of what is in fact said.

This case was one resulting in an award of £1,679,406.00. Most cases in front of the courts do not have the same value in monetary terms. What is true though is that the questions asked affect the evidence obtained. Is it any wonder that a 10-15 minute medical examination for a £216 medico-legal report and a witness statement written by an often unqualified paralegal subject to billing requirements by the firm they work for in the context of the fixed costs to be recovered may be less than optimal in presenting a claimant’s case? The first time anyone has spent a significant period of time asking detailed, precise questions about a claimant’s whiplash injuries, that contrary to the practitioners in the personal injury field may feel may not in fact be the most important thing in a person’s life at any time, let alone some years later at trial, is probably when the defendant’s incredibly experienced counsel tears the claimant apart.

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