Fundamental Dishonesty: Plan It and Put It

Fri, 01 Apr 2022

Another defendant has expended much time and money only to see their fundamental dishonesty finding overturned on appeal. In Jenkinson v Robertson [2022] EWHC 756 (Admin) Choudhury J allowed the Claimant’s appeal that he had been fundamentally dishonest. The case is a timely reminder that s.57 and FD should not be deployed without regard to fairly basic rules of fairness and trial advocacy. It follows relatively hard on the heels of Conjanu v Essex Partnership University NHS Trust [2022] EWHC 197 (QB).

It is now some years since the Court of Appeal in Howlett & Anor v Davies & Anor [2018] 1 WLR 948 set out the simple rule that the “key question in such a case would be whether the Claimant had been given adequate warning of, and a proper opportunity to deal with, the possibility of such a conclusion [of FD] and the matters leading the judge to it rather than whether the insurer had positively alleged fraud in its defence”

In short, there are 2 ways for fundamental dishonesty to arise. One is as part of a litigation strategy by a defendant, either explicitly or putting the Claimant on notice that the issue will be explored. The other is developments in trial that were not expected. Although the notice period is of course going to be different, there is still no reason that the approach is not clearly signposted and properly raised by a defendant, whether long intended or due to a shift in the case.

As Choudhury J notes at his paragraph [23] “No general guidance can be laid down as to what would constitute adequate warning and a proper opportunity to deal, as these would depend on the circumstances of each case”. However, it should now be a given that any defendant wishing to run fundamental dishonesty should have considered what point they will be running, the warning they have given and whether the claimant has indeed had that proper opportunity. In Jenkinson the Defendant took the approach, which is not uncommon, of refusing to particularise the grounds on which a s.57 application may or would be made, even when invited to do so by the Claimant’s then solicitors. The judge had this to say at [40]:

“it is difficult to see that the Claimant was given any real notice at all, apart from a vague and deliberately unparticularised allusion to the possibility of a s.57 application. Merely alluding to such possibility does not, in the circumstances of this case, amount to adequate notice. Were that not so then defendants could routinely flag up the possibility of a s.57 application in advance of trial and then seek to rely upon the fruits of a successful cross-examination to support such an application without giving any further notice. I do not consider that approach to be fair or procedurally sound. A defendant can of course give a claimant fair warning that if the evidence turns out a certain way then a s.57 application might follow. However, a defendant could not simply rely on putting the claimant to proof in order to satisfy the requirement of adequate notice; something more specific would be required so as to alert the claimant (perhaps after the evidence has emerged under cross-examination) as to which aspects of his case were considered to be fundamentally dishonest.”

Even when combined with the references to damages being ‘exaggerated’, ‘unreasonable’, ‘speculative’ and ‘remote’ in correspondence and pleadings, the Defendant had failed to put the Claimant on notice that he would be accused of lying. The problems then continued into the trial where:

“nor was it expressly put to the Claimant during the trial that he was being dishonest… [Defendant’s counsel] had put to the Claimant that he had not been suffering from the pain alleged at the points in time that he claimed he was… However, there is a world of difference between putting to the Claimant that he was not in fact suffering the pain he now alleges and an allegation that he is fabricating or exaggerating the entire story about pain.

An allegation of fundamental dishonesty is a serious one to make. It has serious consequences and in s.57 Parliament has given the courts a punitive weapon to protect the integrity of personal injury litigation. It will often be the high point of a defendant’s case and one that would feature hugely in the trial preparation and cross-examination plan. Putting your case is Advocacy 101 and so failing to put such a serious allegation properly should never be one that arises on an appeal.

The failure to plan properly for the s.57 application had practical impacts that seriously affected the judge’s factual findings. Earlier correspondence explaining an ambiguity in the schedule of loss, that accorded with the Claimant’s answers in evidence and pointed away from dishonesty, was not in the bundle. Secondly, an issue in the case was the Claimant’s apparent resistance to disclosure of an unhelpful medical scan. However, when the issue was finally properly explored following the judgment hand down, it became clear the Claimant’s stance was predicated upon advice from counsel that the scan may be privileged and so did not need to be disclosed. When earlier in the litigation a judge had determined that point against the Claimant, he swiftly disclosed the report. Had the issue been properly set out in correspondence or in a s.57 application, then these documents would have formed part of the trial bundle and perhaps prevented the erroneous findings.

Whilst Howlett does allow a fair degree of flexibility in how FD is raised and explored, there remains a core, irreducible minimum that needs to be done and done properly. So if it is to be raised, plan it and put it.

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