FUNDAMENTAL DISHONESTY AND QOCS...• Claimant caught “bang to rights”. • Surveillance on the day of examination by D2’s medical expert. • C attended DIY store without crutches

FUNDAMENTAL

DISHONESTY AND

QOCS

Vaughan Jacob and Michael Standing

3 April 2019

Introduction (1)

• Qualified One Way Costs Shifting

• Fundamental dishonesty under CPR 44.16 and

s.57 Criminal Justice and Courts Act 2015

• Development of the concept through case law

• Pre-action case preparation

• Pleading points

• Disclosure, including surveillance evidence

• Litigation tactics

Introduction (2)

• Interlocutory strike out applications

• Preparation for trial

• Discontinuance

• Subsequent contempt of court

proceedings

• Recent cases

• Questions and discussion

QOCS : Scope and

interpretation44.13—(1) This Section applies to proceedings which include a claim

for damages—

(a) for personal injuries;

(b) under the Fatal Accidents Act 1976; or

(c) which arises out of death or personal injury and survives for the

benefit of an estate by virtue of section 1(1) of the Law Reform

(Miscellaneous Provisions) Act 1934, but does not apply to applications

pursuant to section 33 of the Senior Courts Act 1981 or section 52 of

the County Courts Act 1984 (applications for pre-action disclosure), or

where rule 44.17 applies.

(2) In this Section, “claimant” means a person bringing a claim to which

this Section applies or an estate on behalf of which such a claim is

brought, and includes a person making a counterclaim or an

additional claim.

QOCS: Scope and

interpretation (2)• Applies retrospectively to proceedings issued before

1 April 2013

• Applies only to claims including a claim for damages

for personal injury

• Does not apply where the Claimant has entered into

a pre-commencement funding arrangement (44.17;

Wagenaar v Weekend Travel Ltd [2014] EWCA Civ

1105)

• ‘Proceedings’ includes the costs of an appeal

(Parker v Butler [2016] EWHC 1251 (QB)).

Effect of QOCS: CPR 44.14 44.14(1) Subject to rules 44.15 and 44.16, orders for costs made

against a claimant may be enforced without the permission of the court

but only to the extent that the aggregate amount in money terms of

such orders does not exceed the aggregate amount in money terms of

any orders for damages and interest made in favour of the claimant.

(2) Orders for costs made against a claimant may only be enforced

after the proceedings have been concluded and the costs have

been assessed or agreed.

(3) An order for costs which is enforced only to the extent permitted by

paragraph (1) shall not be treated as an unsatisfied or outstanding

judgment for the purposes of any court record.

Exceptions where permission

not required CPR 44.15

44.15(1) Orders for costs made against the claimant may be enforced

to the full extent of such orders without the permission of the court

where the proceedings have been struck out on the ground

(a) the claimant has disclosed no reasonable grounds for bringing the

proceedings;

(b) the proceedings are an abuse of the court’s process; or

(c) the conduct of—

(i) the claimant; or

(ii) a person acting on the claimant’s behalf and with the claimant’s

knowledge of such conduct is likely to obstruct the just disposal of

the proceedings.

CPR 44.16

“Exceptions to qualified one-way costs

shifting where permission required

CPR 44.16 (1) Orders for costs made

against the claimant may be enforced to

the full extent of such orders with the

permission of the court where the claim

is found on the balance of probabilities to

be fundamentally dishonest.”

Criminal Justice and Courts Act

2015“57 Personal injury claims: cases of fundamental dishonesty

(1)This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”)—

(a)the court finds that the claimant is entitled to damages in respect of the claim, but

(b)on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.

(2)The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.

(3)The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.”

9

Section 57 continued(4)The court’s order dismissing the claim must record the amount of damages that the court would have

awarded to the claimant in respect of the primary claim but for the dismissal of the claim.

(5)When assessing costs in the proceedings, a court which dismisses a claim under this section must deduct the amount recorded in accordance with subsection (4) from the amount which it would otherwise order the claimant to pay in respect of costs incurred by the defendant.

(6)If a claim is dismissed under this section, subsection (7) applies to—

(a)any subsequent criminal proceedings against the claimant in respect of the fundamental dishonesty mentioned in subsection (1)(b), and

(b)any subsequent proceedings for contempt of court against the claimant in respect of that dishonesty.

(7)If the court in those proceedings finds the claimant guilty of an offence or of contempt of court, it must have regard to the dismissal of the primary claim under this section when sentencing the claimant or otherwise disposing of the proceedings.

(8)In this section—

“claim” includes a counter-claim and, accordingly, “claimant” includes a counter-claimant and “defendant” includes a defendant to a counter-claim;

“personal injury” includes any disease and any other impairment of a person’s physical or mental condition;

“related claim” means a claim for damages in respect of personal injury which is made—

(a) in connection with the same incident or series of incidents in connection with which the primary claim is made, and

(b) by a person other than the person who made the primary claim.

(9)This section does not apply to proceedings started by the issue of a claim form before the day on which this section comes into force.”

10

s.57 Points to Note

• Focus on ‘Claimant’ not ‘Claim’

• Dishonest D who makes a counter-claim can also

be caught

• Applies where there is some genuine claim

• “Proceeding on a claim for damages in respect of

personal injury” (but includes the other parts)

• Related claim captures the claimant who supports

the ‘phantom’ passenger’s claim as in Shah v Ul

Haq [2009] EWCA Civ 542 and claimants involved

in fraud rings or conspiracies

s.57 points to note (2)

• Unless causes ‘substantial injustice’

• Not defined in Act or in case law

• “Something more that the mere loss of

damages” LOCOG v Sinfield [2018]

EWHC 51 (QB)

Applicability of s.57

Applies to any PI claim issued on or after 13

April 2015.

Applies retrospectively to causes of action

which accrued before the Act was passed or

brought into force.

What does FD mean?

• The Jackson report did not define it

• No definition is provided in CPR

• No definition provided in the CJCA or

explanatory notes to the Act

• A definition has emerged through case law

Gosling v Hailo & Screwfix Direct

29 April 2014, HHJ Moloney QC• C claimed to have injured himself using a ladder manufactured by

D1 and sold by D2.

• Initial claim included schedule of £39,000 (including future care claim of £17,000).

• Claimant caught “bang to rights”.

• Surveillance on the day of examination by D2’s medical expert.

• C attended DIY store without crutches.

• When attending medical examination 45 minutes later used crutches.

• C served modest updated schedule with no future care claim.

• D1 settled C’s claim shortly before trial.

• C discontinued against D2.

• D2 brought an application pursuant to CPR Part 44.16 for a finding that C’s claim was fundamentally dishonest.

Gosling v Hailo & Screwfix

continued“The corollary term to ‘fundamental’ would be a word with some such

meaning as ‘incidental’ or ‘collateral’. Thus, a claimant should not be

exposed to costs liability merely because he is shown to have been

dishonest as to some collateral matter or perhaps as to some minor,

self-contained head of damage. If, on the other hand, the dishonesty

went to the root of either the whole of his claim or a substantial part of

his claim, then it appears to me that it would be a fundamentally

dishonest claim: a claim which depended as to a substantial or

important part of itself upon dishonesty.”

(HHJ Moloney QC at [45])

16

Howlett v Davies [2017] EWCA Civ

1696

• Approved the definition in Gosling.

• “Common sense”

• Difference between issues that are ‘fundamental’ as

opposed to merely ‘incidental’

Ivey v Genting Casinos [2017]

UKSC 67• Professional gambler sues a casino for

winnings of £7.7 million.

• Casino alleged gambler had cheated by

using ‘edge sorting’ technique

• At first instance and in the Court of Appeal Mr

Ivey sought to argue cheating required an

element of dishonesty which was not present

• Overhauled the test for criminal dishonesty

set by R v Ghosh 1982 QB 1053

Ghosh test

• A two-part test which required juries to consider:-

• Whether the conduct complained of was dishonest by

the lay objective standards of ordinary reasonable and

honest people; (the "objective test") and, if yes,

• Whether the defendant must have realised that ordinary

honest people would so regard his behaviour ("the

subjective test").

• In order to find a defendant guilty, a jury would have to

be sure beyond reasonable doubt that the answer to

both questions was yes.

New test

• The Supreme Court held that they:-

• ‘must first ascertain (subjectively) the actual state of the

individual's knowledge or belief as to the facts. The

reasonableness or otherwise of his belief may evidence

whether he held the belief, but it is not an additional

requirement that his belief must be reasonable; the

question is whether it is genuinely held.’

• Once that had been established they must determine

‘whether his conduct was dishonest by applying the

objective standards of ordinary decent people. It is not

necessary for the individual to appreciate that what he

has done is, by those standards, dishonest.’

LOCOG v Sinfield [2018] EWHC

51• Volunteer at 2012 Olympic games injured his arm. The

Defendants admitted liability.

• Following a trial on quantum LOCOG served an

amended defence alleging FD.

• C said injury prevented him for upkeeping his 2 acre

garden and employed a gardener. £14,000 was claimed

being 42% of damages.

• C had in fact employed a gardener before the accident

and no further work was required.

• Additional invoices were in fact drawn up by C himself

LOCOG v Sinfield (2)

• At first instance s.57 application was

dismissed finding that C had been

‘muddled, confused and careless’ but not

fundamentally dishonest so as to effect the

entirety of the claim.

• On LOCOG’s appeal, Knowles J adopted

the Howlett test, finding the dishonesty

tainted 42% of the claim and this was

sufficiently ‘fundamental’

LOCOG v Sinfield (3)

Distinctions between s.57 and CPR 44.16?

Para 60 of Judgment:

‘The drafter of s 57 sought to draw several distinctions from CPR r

44.16: it is the claimant who the court must find dishonest, rather

than the claim. Further, rather than permitting the defendant to

recover all of his costs, the court is required to assess the claimant’s

‘genuine’ damages and deduct that figure from the defendant’s

costs. As to the first point, however, it will be rare for a claim to be

fundamentally dishonest without the claimant also being

fundamentally dishonest, although that might be a theoretical

possibility, at least.

• Try and find case law supportive of each

section

s.57 approach

• Para 64 of LOCOG succinctly identifies the following

approach

– 1. Consider whether C is entitled to damages. If not,

consider whether to disapply qocs pursuant to CPR

44.16.

– 2. If C is entitled to damages, has D proved on

balance of probabilities that C has been

fundamentally dishonest in relation to the primary

claim and/or a related claim?

– 3. If so, Judge must dismiss the clam including any

element of the claim which is not dishonest unless C

would suffer substantial injustice

Razumas v MOJ [2018] EWHC

2015 (QB)• Prisoner alleged negligence on behalf of MOJ to arrange

an MRI scan in respect of growth on his leg

• C admitted he had lied about attempting to arrange his own

surgery in a period of liberty, contrary to his pleaded case

• D argued this was fundamentally dishonest; C argued the

untruth ‘barely scratched the bark’ and was not

fundamental, and relied on s.57(2) ‘substantial injustice

exception’

• Mrs Justice Cockerill adopted the test in Ivey and LOCOG

and found the claim was fundamentally dishonest.

Pre-action case preparation

• Suspicious circumstances

• Social media investigations

• Linked email / phone numbers

• CUE searches

– Vehicles

– Addresses

– Claimants / Passenger

• Police disclosure

• Enquiry agents

Pleading points

• No CPR requirement to plead FD

• Howlett v Davis & Anor [2017] EWCA Civ 1696

31. Statements of case are, of course, crucial to the identification of the issues

between the parties and what falls to be decided by the Court. However, the mere fact

that the opposing party has not alleged dishonesty in his pleadings will not necessarily

bar a judge from finding a witness to have been lying: in fact, judges must regularly

characterise witnesses as having been deliberately untruthful even where there has

been no plea of fraud.

39. First, where a witness’ honesty is to be challenged, it will always be best if that is

explicitly put to the witness. There can then be no doubt that honesty is in issue. But

what ultimately matters is that the witness has had fair notice of a challenge to his or

her honesty and an opportunity to deal with it. It may be that in a particular context a

cross-examination which does not use the words “dishonest” or “lying” will give a

witness fair warning. That will be a matter for the trial judge to decide. Secondly, the

fact that a party has not alleged fraud in his pleading may not preclude him from

suggesting to a witness in cross-examination that he is lying. That must, in fact, be a

common occurrence.

Pleading points (2)• If clear, no reason not to plead

• Kearsley v Klarfeld [2005] EWCA Civ 1510, sufficient to "…set out fully the

facts from which they would be inviting the judge to draw the inference that

the plaintiff had not in fact suffered the injuries he asserted".

• Pinkus v Direct Line [2018] EWHC 1671

• I would not allow any issue to be raised of which the claimant would not

have any sufficient notice and which he might have been able to deal with

by way of additional evidence or which the experts would have been able to

address, but had not and could not in the course of the hearing. Thus, I

made it clear that I would not allow any specific points to be taken or

arguments to be run which caused prejudice to the claimant because

they came too late and in respect of which he had had no notice and

could not deal with them or any such point where the experts would

need to consider matters further and/or prepare supplementary

opinion/reports/letters which could not fairly be done in the course of

the trial.

Pleading Points (3)

• Not cross-examination

• When to amend?

• Putting the Claimant on notice

• Skeleton arguments

Disclosure and surveillance

evidence• CPR advocates a ‘cards on the table approach’

• Should you include it in the disclosure list?

• If not, do not have permission to rely on it unless the

court gives permission [CPR 31.21] under its

general discretion

• Wait for witness evidence and potentially schedule

of loss

• Any later may be seen as an ambush and lead to an

adjourned trial and adverse costs orders

• C must be given the opportunity to respond

Surveillance evidence (2)

• Is it actually useful?

• Consider the nature of injury eg psychological

injury unlikely to show up on film

• Noble v Owens [2011] EWHC 534 (QB)

• Can not be an isolated film - weekdays and

weekends, work and home

• May lead to increase in costs and length of trial

given that medical experts may wish to comment

Surveillance evidence (3)

• Uttley v Uttley [2002] PIQR P13;

• Booth v Britannia Hotels Ltd [2002] EWCA Civ

579O’

• Leary v Tunnelcraft Ltd [2009] EWHC 3438 (QB)

• Douglas v O’Neill [2011] EWHC 601 (QB);

• Hayden v Maidstone and Tunbridge Wells NHS

Trust [2016] EWHC 1121 (QB);

• Stewart v Kelly [2016] EWHC 2363 (QB)

• Hicks v PR of Rostas (Deceased) [2017] EWHC

1344 (QB)

Litigation tactics

• Discontinuance, costs and/or committal?

• Medical records

• Part 18s

• Part 35s

• Calderbank offers

Strike out

• If struck out you don’t need permission to enforce costs

order (CPR 44.15(b)).

• Fairclough Homes v Summers [2012] UKSC 26

• C sustained fracture to ankle on building site

• Surveillance showed he was not dependent on crutches

or incapable of working as claimed

• Following a trial at which part of C’s claim was held to be

genuine, the Supreme Court held the Courts did have

the power to strike out a fraudulent claim as an abuse of

process at an interlocutory hearing before or after trial

Strike out (2)• Only to be applied for in exceptional circumstances

• Where to do so will prevent the further waste of the

Court’s resources on proceedings which the claimant

has forfeited the right to have determined (para 62

Summers)

• Test is whether it is ‘just and proportionate’ to do so

• There is no ‘very exceptional’ restriction in an

interlocutory application as with a strike out at the end of

a trial

• Establishing fraud without a trial is difficult because C’s

oral evidence is likely to be key

• Alpha Rocks Solicitors v Alade [2015] EWCA Civ 685

Discontinuance

• What if C abandons his whole claim?

“38.6 (1) Unless the court orders otherwise, a

claimant who discontinues is liable for the costs

which a defendant against whom the claimant

discontinues incurred on or before the date on

which notice of discontinuance was served on the

defendant.”

• May need Court’s permission if interim payment

made (CPR 38.2)

Discontinuance (2)

• CPR 44PD12.4 allows allegation claim is fundamentally

dishonest to be determined after notice of

discontinuance or settlement (in “exceptional

circumstances”)

• Wide discretion and no set procedure – may be in

writing, with a limited enquiry or at trial (Gosling v

Screwfix)

• Alpha Insurance A/S v (1) Lorraine Roche (2) Brendan

Roche [2018] EWHC 1342 (QB)

• No similar provision to accompany s.57 so D may need

an application under r. 38.4 to set aside notice of

discontinuance to pursue s.57 application

Contempt of Court proceedings

• Ds can still pursue contempt regardless of outcome of

any FD determination or s.57 application (particularly if

claimant able to rely on ‘substantial injustice’)

• Will the High Court be interested if the contempt

proceedings follow a failed FD or s.57 application?

• Is additional cost of contempt worthwhile if claim already

dismissed and C ordered to pay D’s costs (to extent of

damages)?

• Higher standard of proof

• Significant costs risks but can send out strong deterrent

message

Contempt (2)

Calderdale and Huddersfield NHS Trust v Atwal

[2018] EWHC 961 (QB)

• D pursued fraudulent claim for damages

• Breach of duty admitted in relation to failure to

appropriately treat minor injuries to two fingers

and a laceration of the lower lip

• With help of video surveillance and social media

profiling Atwal shown to be dishonest

Contempt (3)

• Following amendment of pleadings Atwal accepted

Trust’s early P36 offer but 6 months later Trust brought

proceedings for contempt

• Trust successful to the criminal standard on 14 separate

grounds in proving that statements made within the

Schedule of Loss and Mr Atwal’s Witness Statement,

both of which were verified by Statements of Truth, were

false and that these interfered with the administration of

justice

• For each case of contempt Atwal received a concurrent

sentence of 3 months imprisonment

Contempt (4)Liverpool Victoria Insurance Company Ltd v Zafar [2019]

EWCA Civ 392

• Deliberate or reckless making of a false statement will result in

custody

• Distinction of the culpability between reckless and deliberate false

statements will be minimal

• The fact that modest sums are claimed in the proceedings does not

reduce the seriousness of the contempt.

• Two year maximum term has to cater for the full range of conduct

• Mitigation is relevant

• “Powerful factors” required to suspend custody

• May be appropriate to shorten term, but likely to be immediate

Recent cases• Boon and others v (1) Pritchard (2) Mordescai, Liverpool

County Court, HHJ Gregory, Judgment dated 14

February 2018

• 20 of 25 passengers on a stag do headed to Chester

races claimed they suffered whiplash following a minor

road traffic collision on a roundabout. 17 took the case to

trial.

• Each claim supported by medical evidence and at least

one supporting statement by a partner testifying that

gratuitous care was provided

• Claimants’ case unravelled under cross examination and

the Judge found their evidence to be ’wholly

unconvincing’

Boon (2)

• HHJ Gregory para 99: “Whilst it is not possible for me to

identify on the evidence before the court precisely which

individual or individuals amongst the coach passengers were

the prime movers in the process, I am satisfied that these

claims were not brought in a vacuum. I am satisfied, by the

balance of probabilities, that there was a consensus among

some of passengers that it would be a good idea to claim. It is

probably the case that some of their number embraced the

idea of bringing a claim with a greater degree of enthusiasm

than others, but I am satisfied that there was indeed an

element of mutual encouragement which has led to a

“bandwagon” situation, with the presentation of this multiplicity

of claims.”

Boon (3)

• Para 100: :“I am satisfied, by the balance of probabilities, on the

totality of the evidence, that none of the passengers in the coach

sustained the alleged or any personal injury as a consequence of

the accident involving the two vehicles. In my judgment the

claimants cynically exploited the opportunity afforded by the coming

together of the two vehicles on the roundabout. So, whilst it is

impossible on the evidence to say precisely at whose instigation

these claims were conceived I am satisfied that, in the end, all the

Claimants from whom I heard oral evidence were complicit in

presenting and pursuing claims which, to borrow from the judgment

of his HHJ Iain Hughes QC in Menary v Darnton (unreported,

Winchester County Court, 13 December 2016) were dishonest in

inception and pursued at trial in the hope of taking money from the

Defendants’ insurers to which none of the Claimants were entitled.”

Learning points

• Don’t be perturbed by the absence of a

‘smoking gun’

• Medico-legal evidence often only reports

C’s subjective reporting of symptoms as

opposed to finding objective evidence of

injury

• Number of witnesses may assist in finding

inconsistencies

Wright v Satellite Information Services Ltd

[2018] EWHC 812 (QB)

• HHJ Pearce awarded only £2,100 for a future

care claim exceeding £73,000

• Total damages awarded of £119,165.02 and D

ordered to pay 75% of C’s costs

• D argued the care claim was dishonest given

that C had conceded in XX there was no

requirement for care and his schedule was

signed by SOT

• Judge refused to find dishonesty. D appealed

the refusal to apply section 57


[2018] EWHC 812 (QB) (2)

Yip J:

“I consider that the assertion that the judge

was bound to find dishonesty given his

factual findings is itself based on a lack of

detailed analysis of the way in which the

claim was presented. The unintentional use

of admittedly emotive language was perhaps

symptomatic of that.”


[2018] EWHC 812 (QB) cont.

“Read in the context of the evidence and the way in

which the claim was presented in the schedule, it is

clear that in finding that the claimant had not

established his claim for future care, the judge was not

bound to find that the claimant had acted dishonestly

merely in presenting such a claim. The reason for the

judge’s rejection of this element of the claim was not

that he found the Claimant’s evidence to be untruthful,

but rather that a proper interpretation of that evidence

did not support the assessment of the care expert.”

([32])


[2018] EWHC 812 (QB) cont.

“I do not consider that any of the grounds

are properly arguable when the judgment is

viewed in its proper context by reference to

the evidence before the judge. Essentially,

they amount to an impermissible attempt to

overturn the trial judge’s decision which the

Appellant does not agree with.” ([39])


[2018] EWHC 812 (QB) cont.

Learning points:

• Remain objective

• Reflect on decisions before appealing

• Important to identify failings in the

application of the tests

Molodi v Cambridge Vibration Maintenance

Service & Aviva [2018] EWHC 1288 (QB)

• RTA

• LVI type arguments

• £1,300 vehicle damage claim

• Vehicle repaired by friend for £400

• CNF inconsistencies:

– Passenger

– No rehab (but claim for physio)

– No time off (WS 3 days off, reduced hours 2 weeks)

• Told medical expert 1 previous RTA (at least 5)

• Claim successful at first instance (!)



“The problem of fraudulent and

exaggerated whiplash claims is well

recognised and should, in my

judgment, cause judges in the County

Court to approach such claims with a

degree of caution, if not suspicion”



The court would normally expect …

claimants to have sought medical

assistance from their GP or by

attending A & E, to have returned in the

event of non-recovery, to have sought

appropriate treatment in the form of

physiotherapy (without the prompting or

intervention of solicitors)



and to have given relatively consistent

accounts of their injuries, the

progression of symptoms and the

timescale of recovery when questioned

about it for the purposes of litigation,

whether to their own solicitors or to an

examining medical expert or for the

purposes of witness statements.



Of course, I recognise that claimants will sometimes make

errors or forget relevant matters and that 100% consistency

and recall cannot reasonably be expected. However, the

courts are entitled to expect a measure of consistency and

certainly, in any case where a claimant can be

demonstrated to have been untruthful or where a claimant’s

account has been so hopelessly inconsistent or

contradictory or demonstrably untrue that their evidence

cannot be promoted as having been reliable, the court

should be reluctant to accept that the claim is genuine

or, at least, deserving of an award of damages.”



The medical evidence is at the heart of claims for

whiplash injuries. Given the proliferation of claims that

are either dishonest or exaggerated, for a medical

report to be reliable, it is essential that the history

given to the medical expert is as accurate as

possible. This includes the history in relation to

previous accidents as this goes to fundamental

questions of causation: whether, if there are

ongoing symptoms, those are attributable to the

index accident or to previous accidents or to some

idiopathic condition of the claimant.



Furthermore, the knowledge that a claimant

has been involved in many previous

accidents might cause a medical expert to

look rather more closely at what is being

alleged on the incident occasion to see

whether the claimant is being consistent and

whether his reported injuries are in

accordance with the reported circumstances

of the accident.



In the present case, in my judgment, HHJ Main QC

adopted a much too benevolent approach to evidence

from a claimant which could be demonstrated to be

inconsistent, unreliable and, on occasions, simply

untruthful. The most glaring example of this relates to Mr

Molodi's clear lie to Dr Idoko, confirmed by Dr Idoko in

his Part 35 answers, that he had been involved in only

one previous accident when, as conceded by Mr

Sweeney, there had been five or six previous accidents


Service & Aviva

[2018] EWHC 1288 (QB) Cont.

Once, as here, the Claimant could be shown to

have been dishonest in respect of a

fundamental matter and then to have

maintained that dishonesty through his witness

statement and into his evidence before the

Court, it is difficult to see how the Learned

Judge could have accepted any other part of

the Claimant’s evidence or the medical report

itself – and, without these, there was nothing

left.”


Service & Aviva

[2018] EWHC 1288 (QB) Cont.

• Evidence given to medico-legal

expert is fundamental

• Dishonesty in that context = FD

• A finding that something concealed

from medico-legal often easier than

outright fraud (and more common)

• Part 35s can assist

Any questions..?

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Documents

FUNDAMENTAL DISHONESTY AND QOCS...• Claimant caught “bang to rights”. • Surveillance on the day of examination by D2’s medical expert. • C attended DIY store without crutches