Court of Appeal reviews the meaning of fundamental dishonesty

Ageas and Weightmans successfully defend appeal against a finding of fundamental dishonesty

Howlett v Davies & Ageas

Summary

The claimants brought claims for damages following a minor road traffic accident. The claims were dismissed with the Deputy District Judge finding the claims to have been fundamentally dishonest. Both claimants appealed to a Circuit Judge. Following dismissal of that appeal, one of the claimants appealed to the Court of Appeal. The Court of Appeal has dismissed the further appeal and reviewed the meaning of ‘fundamental dishonesty’ in terms of pleadings, cross examination and judicial discretion in making such findings.

Facts

Mr Justin Howlett and Mrs Lorna Howlett were alleged passengers in a car. The car was driven by the first defendant, a policyholder of the second defendant. The second defendant was added into the proceedings due to concerns regarding the claimants’ evidence and initial lack of assistance from the first defendant.

The defence filed on behalf of the second defendant did not expressly plead that this was a fraudulent claim, or that the claims were ‘fundamentally dishonest’. The second defendant’s defence did however plead numerous issues which disputed the veracity of the claims. The defence followed the guidance given in Kearsley v Klarfeld (2005) EWCA Civ 1510: that defences need to comply with the provisions of CPR 16 and the relevant practice direction.

The case was initially heard over four days by Deputy District Judge Taylor sitting in Portsmouth. The claims were dismissed and the Deputy District Judge found the claims to have been ‘fundamentally dishonest’. The claimants appealed to the Circuit Judge who rejected the appeals. One of the claimants subsequently appealed to the Court of Appeal arguing that the trial Judge could not make a finding of fundamental dishonesty as the allegation of fraud or fundamental dishonesty had not been raised in the defence or adequately dealt with in cross examination.

Judgment of the Court of Appeal

The Court of Appeal unanimously held:

  1. The defence was compliant with CPR 16 and Kearsley such that the claimant knew that issues of credibility and honesty would be dealt with.
  2. Such issues were properly put to the claimants in cross examination by counsel for Ageas.
  3. The interpretation of fundamental dishonesty of Moloney J QC in Gosling v Hailo (Cambridge County Court 29 April 2014) was common sense.
  4. Trial judges can make findings of fundamental dishonesty even though that expression has not been specifically pleaded.

Comment

This case involves a much awaited Court of Appeal comment on fundamental dishonesty and QOCS protection following the Jackson reforms. In short:

  1. There is support for His Honour Judge Moloney’s QC interpretation of ‘fundamental dishonesty’ or more specifically the word ‘fundamental’. The Supreme Court in Ivey v Genting Casinos Limited T/A Crockfords, has subsequently clarified the meaning of ‘dishonesty’.
  2. A defendant is not obliged to plead fraud or fundamental dishonesty in similar cases. Kearsley v Klarfeld’s interpretation of CPR/PD 16 remains sound in terms of guidance on pleadings. Issues of credibility and honesty can be raised without positively alleging fraud or dishonesty.
  3. Issues regarding credibility and honesty raised in the defence must be put to a witness in cross examination.

Iain Davison of Weightmans instructed Tom Vonberg of Devereux Chambers in the Court of Appeal.

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