Claimant cemetery tripper found to be fundamentally dishonest
Donna Saunders v Oldham MBC DJ Manasse
Following an early discontinuance, the Defendant successfully applied for a finding of fundamental dishonesty such that the claimant was liable for costs.
The claimant alleged that she had sustained a neck injury following a tripping accident in an Oldham cemetery. This was supported by several alleged witnesses. Her medical expert recorded that she had no other accidents or relevant injuries. The occurrence of any accident and the claimant’s credibility was called into question due to inconsistencies in the alleged accident date (including disparities within signed witness statements compared to the particulars of claim), and also the failure to inform her medical expert of a RTA which occurred 7.5 months after the index accident and for which she was also pursuing a personal injury claim. When examined for the RTA claim, she also failed to mention the index accident to her expert. It was alleged that if an accident did occur which resulted in some injury then the presentation to her medical expert was so dishonest as to be fundamental to the claim. The inconsistencies were raised within the defence and the claimant discontinued before her directions questionnaire was filed, without any explanation. Despite her solicitors initially seeking to adduce their own statement as to her credibility this was subsequently followed by an application to come off record in advance of the Fundamental Dishonesty application hearing.
The claimant attended the application in person. Despite maintaining in evidence, on oath, that an accident had occurred (albeit on a different date to that pleaded), she remained vague in her account as to why she signed several documents containing Statements of Truth despite knowing that the information was wrong. Similarly the opportunity to provide an explanation as why she failed to mention the injuries from the RTA or those from the index accident to the respective experts fell short with an account of being ‘mixed up’. Having heard from the claimant and with the evidence available DJ Manasse made a finding of fundamental dishonesty and the claimant lost the costs protection from which she would otherwise have benefited under the QOCS rules.
Conclusions and implications
We are continuing to see the courts dealing robustly with cases which are fundamentally dishonest and increasingly in the casualty field. It has been recently recognised by the courts that when considering proportionality in the assessment of an application following discontinuance, that it does have to be recognised that there is a public interest in identifying false claims and in claimants who pursue such claims being required to meet the costs of litigation (Alpha Insurance A/S v Roche & Anr 2018).
With this in mind claimants need to be aware that if they attempt to discontinue at an early stage without explanation, they may find themselves unrepresented and facing an enforceable costs order.
If you have any questions or would like to know more about our update, please contact Suzanne Milne, Partner, on 0161 233 7348, or Suzanne.firstname.lastname@example.org.