There have been several interesting judgments concerning fundamental dishonesty that have been handed down over the last year. The recent judgment of Her Honour Judge Melissa Clarke, sitting as a High Court Judge in the matter of Sudhirkumar Patel v (1) Aviva Midlands Limited (2) Zurich Insurance PLC  EWHC 1216 (QB) is certainly a judgment all PI practitioners should be aware of when making or resisting applications under s57 of the Criminal Justice and Courts Act 2015 ("the Act").
The matter concerned an application made by the Defendants to dismiss the Claimant's claim pursuant to s57 of the Act on the grounds that it was fundamentally dishonest. The claim arose from a road traffic accident in January 2013, in which it was not disputed that the Claimant (a pedestrian) was involved in a collision with a bus owned by the First Defendant and driven by their employee. The Second Defendant was the insurer of the bus.
Medical records showed that following the collision, the Claimant had a cardiac arrest at the scene and was resuscitated after a bystander performed CPR. He was taken to hospital, where he was diagnosed with a subarachnoid haemorrhage and admitted. He spent 3 days in intensive care, before moving to a general ward for a few weeks before discharge. It was the Claimant's case that, despite an initial recovery, he significantly deteriorated within a week of the collision and at the time of filing his claim he was significantly disabled.
An amended Particulars of Claim was signed by the Claimant's litigation friend, namely his son Chirag. Attached to the Particulars of Claim was a medical report of Dr Fleminger, a Consultant Neuropsychiatrist. Dr Fleminger described finding the Claimant in bed, mute, almost entirely unresponsive and without movement in his hands, arms or legs. Dr Fleminger could find no neurological reason for the Claimant's condition and subsequently considered whether his presentation was feigned or arising from a severe conversion disorder. On the balance of probabilities, Dr Fleminger considered that the Claimant was suffering from a severe conversion disorder and that the Claimant further lacked capacity to litigate.
The Defendants instructed Dr Schady, a Consultant Neurologist. He similarly visited the Claimant and found him to be in bed, mute and unresponsive. He agreed with Dr Fleminger that there was no neurological reason for the Claimant's condition and that the Claimant either had a conversion disorder or was feigning his condition. Unlike Dr Fleminger, he felt unable to clinically distinguish between these two possibilities.
Unbeknownst to the Claimant, his family or the medical experts, the Defendants instructed surveillance operatives some 16 months after Dr Fleminger's visit to the Claimant and several months prior to Dr Schady's visit. The Claimant was recorded with his son, Neil, visiting a number of tyre shops in and around Leicester over several hours, and made two separate excursions on the same day. After Dr Schady viewed this evidence, he considered that the Claimant's disabilities were feigned.
The Defendants successfully applied a few weeks before the liability trial to amend their Defence, such as to plead that the claim should be struck out pursuant to s57 of the Act on the basis of fundamental dishonesty of the Claimant and his litigation friend. At trial, the Claimant succeeded on primary liability, yet a finding of 40% contributory negligence was made. The Trial Judge acceded to an application by the Defendants to adjourn the issue of costs following the determination of the s57 application.
The present hearing
The Defendants' case was that the overwhelming inference to be drawn was that the Claimant and his litigation friend had acted dishonestly in relation to the claim. In so doing, they had substantially affected the presentation of the Claimant's case on quantum which went to the root of the claim. Consequently, the Defendants invited the court to find that the Claimant was fundamentally dishonest and to dismiss the claim. The Claimant's case, on the other hand, was that the accident had grave implications for his health and denied any dishonesty. The Claimant sought a dismissal of the Defendant's application and indemnity costs.
The Defendant drew the court's attention to the commentary in the White Book 2019 at paragraph 184.108.40.206 (misquoted as paragraph 220.127.116.11 in the judgment), which referred to Summers v Fairclough Homes Ltd  UKSC 26. It noted that: “…The Supreme Court held that the court does have the power to strike out a statement of case under r3.4(2) and under its inherent jurisdiction for abuse of process even after the trial of an action in circumstances when the court has been able to make a proper assessment of both liability and quantum. However, it was held that, as a matter of principle, it should only do so in very exceptional circumstances. The Supreme Court considered whether the possibility in such circumstances was so theoretical that it should be rejected as beyond the powers of the court, but concluded that it would be unwise to limit in advance the kinds of circumstances in which sufficient abuse might be found. It was stated that in deciding whether or not to exercise the power the court must examine the circumstances of the case scrupulously in order to ensure that to strike out the claim is a proportionate means of achieving the aim of controlling the process of the court and deciding cases justly…”
Timing of s57 application
The Judge said that Parliament provided by s57(1)(a) that the court could only find fundamental dishonesty once it had first found that that the claimant was entitled to damages on the claim, but it did not provide that the court must first carry out a quantum assessment of the full claim before fundamental dishonesty could be found.
The Judge was satisfied that as a matter of law, a s57 application may be determined at any time after the claimant’s entitlement to damages is established. Whether, in any case, it should be determined before a quantum trial will depend on whether it can be determined justly at that time. However, the Judge said that she considered it necessary for a court considering a s57 application in such circumstances to think carefully whether there are real grounds for believing that a fuller investigation will add to or alter the evidence relevant to the issues that it must determine.
The Judge was satisfied on the balance of probabilities that Dr Fleminger’s capacity assessment of the Claimant was made on the basis of incorrect information gleaned by the Claimant’s presentation and what he was told about the Claimant’s disabilities by his son. The Claimant therefore was left with a presumption of capacity.
The Claimant submitted that the court could not make a finding of fundamental dishonesty on the basis of untested witness statements from his family and friends. The Judge did not accept this, as those statements painted a picture of the Claimant’s condition which was entirely at odds with how the Claimant presented to the medical experts.
Further, the Claimant submitted that the court could not make a finding of fundamental dishonesty without hearing from and testing at trial the full range of expert evidence that the Claimant sought to rely upon for quantification of his claim. It was further submitted that a capacity assessment with a view to appointing a deputy was required. The Judge did not agree. She considered that the issue was whether the Claimant had been fundamentally dishonest in relation to the claim as pleaded. In her judgment, whether or not the Claimant continued to be investigated medically was not in itself relevant to the specific issue of dishonesty.
The Judge accepted Dr Schady’s post-surveillance opinion that the diagnosis of a severe conversion disorder was not tenable, that the Claimant’s disability was feigned and there was no medical condition, either physical or psychological, to account for it.
The Judge went on to find the Claimant fundamentally dishonest and dismissed the entirety of the claim.
This is an interesting decision, as it makes clear that a defendant does not have to wait until the quantification of damages before a s57 application can be heard. It further provides clarification in respect of whether the court requires oral evidence of witnesses to be heard and expert evidence tested before a finding of fundamental dishonesty can be made.