Crawford mpany : To avoid splinters, don’t sit on the fence

The recent case of Mustard v Flower & Ors [2021] EWHC 846 (QB) raised an interesting point in relation to a Defendant seeking to amend their defence to raise the spectre of fundamental dishonesty.

This case serves as a reminder for defence lawyers on how to approach this conundrum; particularly in relation to claims involving complex injuries when there are a range of expert opinions.

The facts

The matter revolved around a claim for personal injury following a road traffic accident in 2014.

There were numerous issues between the parties; excluding liability, which had been admitted. The Claimant is said to have had a complex prior medical history but alleges as a result of the index accident she suffered a subarachnoid brain haemorrhage two days after the accident.

There was dispute between the experts in relation to the Claimant's presentation, together with the relevance and interpretation of her pre-accident medical history. The velocity of the accident was key to many of these disputes. In this regard the Defendant says this was a minor accident, while the Claimant says it was a moderately severe accident. Of importance the Defendant's experts said the Claimant had not suffered a brain injury, which the Claimant's experts disagreed with.

The application

What the Defendant sought to do is not unique, not least when as it appears in this case that the defendant was faced with a potentially large claim and the expert To avoid splinters, don't sit on the fence Legal Services evidence was diametrically opposed. Clearly the question at the back of the defendant's mind was whether the Claimant was consciously exaggerating her symptoms or not

Therefore they sought to amend their defence to raise these concerns. What they did not do was to specifically plead fundamental dishonesty, but sought to plead that they reserved the right to raise such an issue. The draft pleading was as follow:

'4.4 The Claimant's accounts of the RTA and its immediate aftermath, and the nature and severity of her symptoms both before and after the accident have varied over time, are unreliable and are in issue. They have been exaggerated (or in the case of her preRTA history minimised) either consciously or unconsciously - the Third Defendant cannot say which absent exploring the issues at trial. In the event that the Court finds that the Claimant has consciously exaggerated the nature and/or consequences of her symptoms and losses, the Third Defendant reserves the right to submit that a finding of fundamental dishonesty (and the striking out of the claim pursuant to section 57 Criminal Justice and Courts Act and/or costs sanctions including the disapplication of QOCS) is appropriate.'

The Claimant did not agree the amendment; save for the first sentence. Therefore the matter proceeded to a hearing before Master Davison.

Decision

Master Davison refused the permission for the amendment as drafted and removed the following element:

'In the event that the Court finds that the Claimant has consciously exaggerated the nature and/or consequences of her symptoms and losses, the Third Defendant reserves the right to submit that a finding of fundamental dishonesty (and the striking out of the claim pursuant to section 57 Criminal Justice and Courts Act and/or costs sanctions including the disapplication of QOCS) is appropriate.The Claimant had also wished the second sentence of the amendment to be removed, i.e. They have been exaggerated (or in the case of her pre-RTA history minimised) either consciously or unconsciously - the Third Defendant cannot say which absent exploring the issues at trial.'

Master Davison did not accept this argument and quite rightly allowed this element of the amendment, on the basis that the Claimant was being told what the issue was, i.e. was not going to be ambushed with such an assertion at trial.

Master Davison reiterated the established principle that fundamental dishonesty does not need to be pleaded. This appears to have been at the forefront of Master Davison's thoughts when refusing the Claimant's request to remove the second sentence of the amendment.

Equally, Master Davison was concerned that if the amendment was allowed in full, this would potentially have a significant impact upon the Claimant's funding of the case, i.e. such a pleading would have to be reported to the legal expense insurer, who could seek to void the policy ab initio.

Comment/lessons to be learnt

Ultimately, this case serves as a reminder that speculative and uncorroborated (no expert had raised exaggeration in their reports) or conditional pleadings of fundamental dishonesty will not be approved and should be avoided

However this very reasoned judgement allows the Defendant to raise their concerns in relation to potential conscious exaggeration of symptoms at trial. However, quite rightly, Master Davison seems to have concluded that the appropriate forum for these issues to be decided would be the trial itself

The Defendant has the right to raise the argument and indeed should do as soon as possible to avoid an ambush. If evidence of dishonesty comes to light, the Defendant will of course be in a position to raise s.57 of The Criminal Justice and Courts Act 2015 at trial.

However, on the basis of a speculative pleading, the Claimant is not going to be potentially precluded from pursuing their claim in light of the potential implications to her funding of the claim.

Master Davison emphasised that nothing in this decision veered from the 'cards on the table approach' that the parties should conduct litigation.

Therefore in cases when there is prima facie evidence of dishonesty, the Defendant should seek to clearly plead this.

Important note: This commentary is for information purposes only and should not be taken as legal advice.