Fundamental Dishonesty - A Recent case

A common occurrence in Personal Injury claims are Claimants exaggerating the nature and extent of their injuries in order to maximise the damages that they may receive. This is obviously not condoned by anyone but is widely known to be something which does happen in the sector. Usually these exaggerations are slight, such as scoring your pain slightly more than it really is but, on very rare occasions,  a Claimant will come along and exaggerate and invent to such an extent that the Defendant is entitled to plead Fundamental Dishonesty.

Fundamental Dishonesty is a high bar to meet, but in the recently handed down judgement of Kirsty Williams- Henry v Associated British Ports Holdings Ltd [2024] EWHC 806 (KB) the Claimant had gone so far beyond mere exaggeration that she was found to have fabricated a number of injuries, and wildly exaggerated the rest.

Following a fall from Aberavon Pier in July 2018 the Claimant suffered a Traumatic Brain Injury and a number of other minor injuries. Ultimately liability was settled at two thirds due to her contributory negligence – the Claimant was drunk when she fell from the pier – and the matter turned to quantum. The Claimant advanced a claim valued at £3,526,628, which was reduced to £2,352,261 to account for the liability split.

Throughout the proceedings, the Defendant (though their insurers) had instructed covert surveillance of the Claimant. The surveillance showed, among other things, the Claimant walking unaided for long periods and distances, as well as demonstrating a busy social life including foreign holidays and concert going. This is contrasted with the Claimants stated case that she needed a walking stick, suffered issues with her balance and dizziness, as well as being unable to go about her normal day to day life.

Further demonstrating the extent of the Claimants dishonesty, while she was making exaggerated claims for the benefit of the proceedings, she was also reiterating these in a DWP application for PIP (Personal Independence Payment). Conversely when completing a life insurance application, the Claimant neglected to mention any of her symptoms in what we can only assume was an attempt to secure a lower premium.

Fundamental dishonesty is found in Section 57 of the Criminal Justice and Courts Act 2015 and provides that where the Court is satisfied that, on the balance of probabilities, the Claimant has been fundamentally dishonest in relation to their claim the claim must be dismissed, unless the Court is satisfied that the Claimant would suffer substantial injustice were the claim to be dismissed. A further requirement is that, when dismissing the claim, the Court must record what the damage would have been but for the dismissal of the claim.

In accordance with this requirement, Mr Justice Ritchie assessed the Claimants damages as £895,000, adjusted to £596,707 to reflect the split liability, a far cry from what the Claimant had valued her case at. It is not at all uncommon for the claimed damages and the awarded damages to be quite different figures, but Mr Justice Ritchie had found that the Claimant’s “lies” had inflated her claimed amount by over £1million which had likely led to the dispute continuing rather than settling.

The final point which needed to be considered was whether the Claimant would suffer “substantial injustice” in having her claim dismissed. Considering a number of factors, including the range and extent of the dishonesty, as well as whether or not the Claimant was repentant (she was not, she maintained even in her last witness statement served after the surveillance was disclosed that she had not lied at all) Mr Justice Ritchie found that the Claimant would not suffer substantial injustice if her claim was to be dismissed.

The Claimant was allowed to keep the £75,000 interim payment which she had received, with the Defendants making no application for a repayment order and inviting Justice Ritchie to decline to make such an order under Part 25. It seems that the Claimant being allowed to keep this sum was sufficient to keep this out of substantial injustice territory as, if forced to pay it back, the Claimant would likely have faced real hardship including loss of her home and, per witness evidence on her behalf, suicide.

The finding of fundamental dishonesty can also have a further impact on a Claimant in that it is one of the few exceptions to Qualified One-Way Costs Shifting – the rule which typically prevents a Defendant from recovering their costs from the Claimant. It remains to be seen what costs the Claimant may be ordered to pay, though she will likely be on the hook for some of her own solicitors costs too in light of her conduct.