Fundamentally dishonest claimant’s claim dismissed: s.57 of the Criminal Justice & Courts Act 2015 in action

In Kirsty Williams- Henry v Associated British Ports Holdings Ltd [2024] EWHC 806 (KB), a claimant who had sustained serious injuries following her fall from a pier in 2018 had her claim dismissed because the judge, applying s.57 of the Criminal Justice & Courts Act 2015, concluded that she had been fundamentally dishonest and that dismissing her claim would not cause “substantial injustice”.

The claimant was found to have lied, seriously and repeatedly, in relation to her ongoing condition, and to have been wholly unrepentant when giving evidence. Her dishonesty was unravelled, largely, by effective video surveillance evidence and her own social media posts.

But for her dishonesty, she would have been awarded £895,000 less 1/3 to reflect her contributory negligence.

The judge did, however, decide not to order her to repay £75,000 of interim payments.

Overall, a catastrophic judgment for the claimant, with huge credit owed to the defendant’s insurers and legal representatives for their painstaking work in proving her fraudulent conduct.

Discouraging dishonesty – s.57 Criminal Justice & Courts Act 2015

It is unfortunately the case that some personal injury claimants are dishonest.

The defendant faces the challenge of identifying the true extent of the injuries sustained as a consequence of the accident and differentiating between those claimants who are essentially honest, even if their reported symptoms are puzzling or appear at odds with the accident circumstances, and the downright fraudulent. Investigating a potentially fraudulent claim, and building the evidence to prove it, can be expensive and the costs invested are unlikely to be recovered. Care, and a degree of courage, are required.

Medical experts can be fooled by dishonest claimants and sometimes demonstrate a reluctance to recalibrate their opinions even when presented with compelling evidence of the claimant’s dishonesty, as was the case in Williams-Henry.

s.57 was an attempt to discourage dishonesty by introducing a significant penalty for those found to have been fundamentally dishonest: they would be deprived not only of the fraudulent element of their claim, but all of it. To deprive a fraudulent claimant of the dishonest portion alone would hardly constitute a disincentive.

To succeed, the defendant must satisfy the court that the claimant had not merely been dishonest, but that the dishonesty went to the heart of the claim rather than some collateral issue. If satisfied that the claimant has been “fundamentally dishonest”, the judge must dismiss the personal injury claim unless satisfied that the claimant would suffer “substantial injustice” by doing so.

Substantial Injustice

The question of what constitutes substantial injustice has been considered in a number of cases. In Williams-Henry, the judge observed that: “the correct approach …. is to balance all of the facts, factors and circumstances of the case…” but identified 8 key considerations:

1. The amount claimed when compared with the amount awarded. If the dishonest damages claimed were a modest proportion of the total claim, that would weigh more heavily in favour of a substantial injustice ruling.
2. The scope and depth of that dishonesty. Widespread and gross dishonesty would weigh more heavily against a substantial injustice ruling.
3. The effect of the dishonesty on the construction of the claim and the destruction/defence of the claim by the defendant. Consider all matters including the cost consequences of the work done in relation to the dishonesty compared to the work done had there been no dishonesty.
4. The scope and level of the claimant’s assessed genuine disability caused by the defendant. In cases of very serious injury, depriving the claimant of damages would transfer the cost on to the NHS and social services (so the taxpayer) and away from the insurer who had taken a premium for the cover.
5. The nature and culpability of the defendant’s tort. Serious and culpable conduct would weigh more in favour of a substantial injustice ruling.
6. What the court would do in relation to costs if the claim was not dismissed.  The judge should consider whether, if the claim is not dismissed, the “honest” damages will be substantially reduced or extinguished in any event as a consequence of an adverse costs order and/or an obligation to meet the claimant’s own legal fees. If so, then it is less likely that substantial injustice will be caused by the dismissal of the claim.
7. The size of any interim payments made and the claimant’s ability to repay them.
8. The effect of dismissing the claim on the claimant’s life. For example, will the claimant lose their house? Need to live on benefits as unable to work?

The judge’s findings

The judge had very little difficulty concluding that the claimant had been fundamentally dishonest. In a detailed review of her evidence, he identified multiple, egregious, examples of the claimant’s dishonesty. She and her lay witness mother were both found to have been “thoroughly dishonest.”

Familiar arguments were run in an attempt to explain the significant discrepancies between the claim made and the surveillance/social media evidence: the videos did not show the intricacies of her “complex presentation”; she was suffering from “illness behaviour” and had become dependent on her mother; she was suffering from a Somatic Pain Disorder; there was an element of “functional overlay”. All failed to persuade the judge, who concluded that the claimant’s dishonesty was a deliberate and conscious attempt to maximise her damages.

The more challenging question was whether dismissing the claim would cause her substantial injustice. Carefully working through each of his 8 tests, and having decided not  to order repayment of £75,000 in interim payments, the judge concluded that substantial injustice would not be suffered. The claim was, on that basis, dismissed in full.

Notably, the judge was presented with evidence from the claimant’s treating psychiatrist that there was a serious risk of her committing suicide were the claim to be dismissed in full. The judge considered that, whilst this evidence was “deeply troubling”, it was irrelevant to the decision on fundamental dishonesty, but was relevant to the question of substantial injustice. Although he “took into account” the evidence of her suicidal ideation, her current unstable mental state had been caused by her own dishonesty (the claimant’s mental state had apparently taken something of a dip when the defendant disclosed its damning surveillance evidence). It was not sufficient, whether alone or in conjunction with the other unfortunate consequences of her dishonesty, to amount to substantial injustice.

Comment

The judgment shows the power of video surveillance evidence, particularly when combined with helpful social media posts, to cut through not only the lies of dishonest claimants but the often complex, not to say convoluted, medical explanations advanced to “explain” the claimant’s presentation.

It shows that s.57 of the 2015 Act can be a powerful tool in fighting fraud. The outcome for the claimant was disastrous; hopefully her cautionary tale will discourage at least some would-be fraudulent claimants.

It also provides some guidance for courts wrestling with the issue of identifying “substantial injustice.”

Finally, the judge’s, at times stinging, dismissal of some of the claimant experts’ evidence provides a helpful list of approaches which all experts would do well to avoid:

• Straying from your area of expertise.
• Failing to consider causation - failing to distinguish between accident-related complaints and non-accident related complaints.
• Being too accepting of the claimant’s self-reported symptoms. Failing to adequately cross-reference the account provided with contemporaneous medical notes and other relevant evidence. The claimant’s neuro-psychologist was forced to concede that she had “just accepted everything which the claimant had told her.”
• Delivering long-winded, evasive, oral evidence.
• Failing to address contradictory evidence in a credible, balanced way, and so appearing to be little more than an advocate for the party on whose behalf you have been instructed.
• Arrogantly dismissing other expert disciplines.