In a truly Phyrrhic victory for the Defendant, the Supreme Court has just handed down a judgment overruling Ul-Haq v Shah and Widlake v BAA. In Fairclough Homes v Summers  UKSC 26 the Supreme Court held that it is open to a judge to strike out a fraudulently exaggerated claim on grounds of abuse of process, even after judgment on liability and where it is possible to assess the damages to which the claimant would otherwise be entitled. But the Supreme Court considered that it would only be appropriate to do so in very exceptional circumstances. The circumstances of this case were not exceptional enough and the case should not be struck out.
This was a pretty egregious case: surveillance evidence proved that the Claimant lied to his treating doctors, the DWP and the medico-legal experts. The video evidence even showed the Claimant on two separate occasions going to and from medical consulting rooms on crutches when he didn’t use crutches when leaving or returning to his house. The Claimant’s wife also kept a diary with evidence of the Claimant’s working, going out and playing football during the time he was alleging a serious disability. The judge was satisfied on the civil and criminal standard that the Claimant had fraudulently exaggerated his claim and told deliberate lies.
If this isn’t exceptional enough, what might be?
The fraud or exaggeration needs to be sufficiently serious that the claimant has forfeited his right to have his claim determined. This might seem rather circular. The Supreme Court went on to say that the circumstances might include a case where there had been a massive attempt to deceive the court, but the award of damages would be very small. It is notable that the Claimant’s claim was held to be worth in excess of £80,000. Proportionality was emphasised: taking human rights considerations into account, the court must examine the circumstances of the case scrupulously to ensure that striking out of the claim is a proportionate means of achieving the aim of controlling court processes and deciding cases justly.
The Supreme Court also emphasised that they considered that it was more appropriate to punish a fraudulent claimant for contempt of court rather than to relieve the defendant of his liability. They repeated Moses LJ’s remarks that those who pursue false claims, if caught, should expect to go to prison.