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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Mustard v Flower & Ors [2021] EWHC 846 (QB) (12 April 2021) URL: http://www.bailii.org/ew/cases/EWHC/QB/2021/846.html Cite as: [2021] EWHC 846 (QB) |
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QUEEN'S BENCH DIVISION
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
____________________
SAMANTHA MUSTARD |
Claimant |
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- and - |
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JAMIE FLOWER (1) STEPHEN FLOWER (2) DIRECT LINE INSURANCE (3) |
Defendants |
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Mr William Audland QC (instructed by BLM) for the Third Defendant
Hearing date: 29 March 2021 (by Microsoft Teams)
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Crown Copyright ©
Introduction
"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 pre-RTA 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 law
"(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.
(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.
(8) In this section –
"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."
"(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."
"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. On top of that, it seems to me that where an insurer in a case such as the present one, following the guidance given in Kearsley v Klarfeld [2006] 2 All ER 303, has denied a claim without putting forward a substantive case of fraud but setting out "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", it must be open to the trial judge, assuming that the relevant points have been adequately explored during the oral evidence, to state in his judgment not just that the claimant has not proved his case but that, having regard to matters pleaded in the defence, he has concluded (say) that the alleged accident did not happen or that the claimant was not present. The key question in such a case would be whether the claimant had been given adequate warning of, and a proper opportunity to deal with, the possibility of such a conclusion and the matters leading the judge to it rather than whether the insurer had positively alleged fraud in its defence.
32. Further, I do not think an insurer need necessarily have alleged in its defence that the claim was "fundamentally dishonest" for one-way costs shifting to be displaced on that ground. Where findings properly made in the trial judge's judgment on the substantive claim warrant the conclusion that it was "fundamentally dishonest", an insurer can, I think, invoke CPR r 44.16(1) regardless of whether there was any reference to fundamental dishonesty in its pleadings. To my mind, there is force in Judge Blair QC's comment (in para 54 of his judgment):
"I observe that one does not have to plead a claim for an award of costs on the indemnity basis (as opposed to the standard basis), so why would one have to expressly plead this more remote stage of the costs determination exercise, namely for an order for the enforcement of an adverse costs order?"
33. Turning to the facts of the present case, Ageas' defence, while eschewing "a positive case of fraud at this stage", adverted to the possibility of the court finding "elements of fraud to this claim"; expressly stated that Ageas did "not accept the index accident occurred as alleged, or at all", that it was denied that "there was an accident as alleged", that credibility was in issue and that the Howletts were required to "strictly prove" the matters specified in para 7; and listed in para 6 various matters casting doubt on the claim, including facts that were stated in terms to be "beyond mere coincidence and, instead, … indicative of a staged/contrived accident and injury". In my view, this pleading gave the Howletts sufficient notice of the points that Ageas intended to raise at the trial and the possibility that the judge would arrive at the conclusions he ultimately did. The Howletts cannot, in the circumstances, fairly suggest that they were ambushed. Assuming, moreover, that the views that the judge expressed in his substantive judgment are not open to objection because of how matters were put (or not put) to witnesses in cross-examination (which I shall consider in a moment), it was proper for Ageas to contend, and the district judge to hold, that the findings made in the judgment showed the claim to be "fundamentally dishonest" within the meaning of CPR r 44.16(1)."
"12. At the beginning of the trial the claimant applied for a ruling that the defendant should not be allowed to run their case on conscious exaggeration, malingering and fundamental dishonesty. I gave an extemporary ruling allowing the defendant to run these arguments. I expand the ruling now to say that I find that in the circumstances of this case the principles set out by Newey LJ in Howlett apply in preference to the principle enunciated in Three Rivers. At the beginning of the trial the claimant had known "what he was facing" for some time. He knew he had been subject to surveillance. He knew there were issues in relation to the medical evidence which made conscious exaggeration at least a possibility (including lack of a definitive diagnosis, the unusual pattern of symptoms he was reporting, the failed effort tests, and the dispute about how the accident occurred.) By the time of the trial he knew the detail of the matters in the updated counter schedule and the specific allegations of conscious and gross exaggeration. He had had an opportunity to respond even at that stage, seeking to admit further statements in rebuttal of defence witnesses, including from his son and by seeking to put in evidence of previous convictions, casting doubt on the credibility of one of the defendant's witnesses. The matters to be put to him in cross-examination would not, in my view, have come as any surprise to him.
13. Moreover, since as in any case and as set out in Howlett, it must be open to me, having heard all the evidence, to conclude that the claimant is lying or exaggerating in respect of some of his claim, the case ought to be put squarely to him to allow him to respond. This must include issues raised in the course of the trial which go to credibility even where they have not been specifically pleaded.
14. However, as I said when I gave my ruling, 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."
Discussion
i. The proposed amendment serves no purpose. In the circumstances of this case, the defendant can, if appropriate, make the application without having foreshadowed it in a pleading. The somewhat doom-laden wording that the 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" is unnecessary. It is not quite correct to label an application under section 57 a "right" and, even if it were, there would be no requirement to have "reserved" the right in advance.
ii. At the present time, a plea of fundamental dishonesty has no real prospect of success and therefore, even pleaded on a contingent basis, does not satisfy the test for granting permission to amend. Dishonesty, as opposed to a functional disorder or somatisation, is not, or not clearly, raised by the medical experts. If it has a basis, that basis is, on present material, slender. By contrast, if the correct diagnosis is a functional disorder, that would seem to have a good "fit" with the claimant's pre-accident history and the fact that she suffered a subarachnoid haemorrhage very shortly afterwards. Even if, as the defendant contends, that was entirely unconnected with the accident, it could hardly have failed to have raised fears and anxieties in the claimant's mind.
iii. It causes prejudice to the claimant. As Mr Dickinson has explained, a plea of fundamental dishonesty has to be reported to the claimant's legal expenses insurers and opens up a theoretical possibility of them avoiding the policy ab initio. At the very least that will create an added burden of administration and costs. Furthermore, a finding of fundamental dishonesty has grave implications for the claimant and the proposed amendment, if allowed, would be apt to raise further fears and anxieties for which, at the present time at least, there is no proper basis.
Neuro-imaging
"Magnetic resonance imaging (MRI) assessment was performed at the Imperial College Clinical Imaging Facility the Hammersmith Hospital, Imperial College London NHS Trust. A 3 Tesla Siemens Vario scanner was used. T1, T2, Flair, Susceptibility Weighted Imaging (SWI) and 64 direction Diffusion Tensor Imaging (DTI) were acquired."
"Professor Sharp is a neurologist at the department of brain sciences within the medicine faculty of Imperial College. He has provided a brief report dated 25 April 2019 on some neuroimaging which was commissioned by the claimant's solicitor in November 2018 and carried out on 8 January 2019. The report is titled "medico-legal neuroimaging report" and it was, at least initially, accepted to have been a medico-legal instruction. At the hearing, Mr Grant told me that that was an error and that the instruction had been paid for by the claimant from her personal funds – its primary purpose being clinical. The imaging has been reviewed by Dr Butler, the claimant's neuroradiologist, in a letter dated 15 July 2019. It has also been reviewed by Dr Stoodley, the defendant's neuroradiologist, in letters dated 29 July 2019 and 21 August 2019.
The report from Professor Sharp is a medico-legal report in both form and substance. The contrary does not seem to me to be arguable. Given that the claimant already has an expert neurologist, Dr Allder, I have no hesitation in excluding Professor Sharp's report. However, it would be artificial to exclude the imaging itself which the instructed neuroradiologists have considered and commented upon, and likewise their reports. However unsatisfactory the commissioning of the imaging may have been, this is another genie that cannot easily be put back into the bottle."
"Diffusion tensor imaging (DTI) was analysed using the FSL diffusion toolkit (Smith et al, 2006) and an advanced Diffusion Tensor Imaging Toolkit (DTI-TK) designed to optimize spatial normalization and atlas construction for the examination of white matter morphometry (Zhang et al., 2006)."