Claimant’s “fundamental dishonesty” debars all of £3 million damages claim

Muyepa v Ministry of Defence (MOD) — High Court, King’s Bench Division

In a judgment handed down on 21 October 2022, Mr Justice Cotter ruled that the claimant’s entire claim for damages, which had been pleaded at the trial to be worth £2.97 million, should be struck out.

The judge accepted that the true value of the genuine underlying claim for a Non-Freezing Cold Injury (NFCI) was occasioned by the defendant’s breach of duty and was worth £97,000. However, in line with Section 57 (3) of the Criminal Justice and Courts Act [2015], he struck out the whole claim, unconvinced that a “substantial injustice” would occur if the claimant were deprived of those (reduced) damages.

Background

The claim was framed against the MOD for their breach of statutory duty and common law negligence arising from the claimant’s attendance at a promotions course held in Wales in 2016. This resulted in the claimant developing a Non-Freezing Cold Injury (NCFI) which affected his hands and feet. 

The claimant was downgraded by a Medical Board in 2017 and was discharged from service in January 2018. The claimant alleged that his ongoing symptoms left him severely disabled. The final Schedule of Loss pleaded prior to trial claimed damages to include loss of earnings, pension and ongoing care and amounted to almost £3 million.

The defendant’s primary contention was that the claimant created or consciously and significantly exaggerated his symptoms, that he was fundamentally dishonest and that the whole claim should be dismissed.

The Trial

The trial lasted for 12 days and the judge heard from a total of 29 lay witnesses and 10 experts in a variety of fields to include chronic pain and psychiatry.

The court was told of several instances – some captured on video film, some not- which were “deeply inconsistent” with the claimant’s claimed severe disability and presentation both in his witness statements and to the medical and care experts.

The claimant maintained that he could only walk a few metres before the pain became too severe and he used a walking stick every day. The defendant alleged that the claimant had been walking unaided at a wedding in 2019, dancing at a barbeque and had exhibited differing presentations of disability when seen by a former colleague shopping in supermarkets.

The claimant also claimed ongoing care was provided by his wife, despite the fact that they had lived separately since 2018. This was not disclosed by the claimant either to the Department for Work and Pensions when benefits were claimed or to the experts, to include Ms Kerby, the claimant’s care expert. A substantial claim for care, aids and appliances formed part of the claimant’s claim for damages.

In rejecting the evidence given by the claimant and Mrs Muyepa, Mr Justice Cotter said:

“I have reached the conclusion that major parts of the testimony of both ……….cannot be accepted as truthful or accurate”.

Further that:

“A video of the wedding in June 2019 showing the claimant walking normally in a casual fashion……….is as devastating for the claimant’s credibility as the defendant’s experts found it to be in the context of the chronology of medical examinations”.

The experts’ testimony

Mr Justice Cotter preferred the expert evidence provided by the defendant – Doctors Mumford, Friedman and Edwards, whom it is said provided:

“a coherent, consistent picture of conscious, deliberate, prolonged and significant exaggeration (in contrast to) the overly benign and I regret to say at times partisan analysis of Doctors Carey, Baggaley and Sidery”.

The judge was even more scathing about the evidence given by the claimant’s care expert, concluding that Ms Kerby’s experience when giving evidence should stand as a warning. There was:

• No adequate assessment of why care/aids/appliances were reasonably required.
• No consideration of whether the aids/appliances would have been used by the Claimant in any event.
• No range of views expressed.
• No recalculation of the figures stated in the report though 10 days had passed since the claimant gave evidence.

Mr Justice Cotter said:

“The reports prepared contained some partisan views designed to maximise damages rather than making recommendations after balanced and objective application of the relevant issues”.

Fundamental dishonesty

The judge considered himself “wholly satisfied” that the claimant was dishonest and that he was “fundamentally dishonest”.

He referred to the dishonesty starting in April 2017 to secure discharge from the Army, that as the diagnosis of the condition (NFCI) depended substantially on the claimant reporting his symptoms accurately, exaggeration of symptoms had tainted the whole case

Finally, he noted that the value of the underlying valid claim (£97,0000), represented just over 3 % of the pleaded Schedule of Loss at the start of the trial.

The valid, underlying claim

Section 57 (3) of the Criminal Justice and Courts Act [2015] permits a claimant to recover the value of the valid underlying claim only if he/she is able to establish that to deprive the claimant of the entirety of his damages would result in a “substantial injustice”.

Mr Justice Cotter ruled that no “substantial injustice” would eventuate in this case and that Section 57 (3), should be seen in the context of Parliament intending this to be punitive and to act as a deterrent.

Comment

Whilst this case breaks no new law in the context of “fundamental dishonesty”, it ought to act as a salutary lesson to claimants consciously exaggerating elements of their claims for damages, in that, despite having a valid underlying claim, the entirety of the claim may be struck out.

It is hoped that criticism of the claimant’s medical and non-medical experts will encourage less partisan and more balanced reporting, particularly in the field of care. Here, experts should firstly establish whether care/aids/appliances are reasonably required and secondly, regardless of the claimant’s injury or condition, advise whether the claimant would have required these in any event.

The likelihood of a successful appeal appears to be remote given the multiple findings of facts made by the judge.