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Dishonesty is dishonesty

Claimant’s inaccurate account of the circumstances of a collision leads to a finding of fundamental dishonest.

Asghar v Galliford Try Plant & Another
County Court at Sheffield 18 October 2019

Executive summary

Those who deal with motor claims will no doubt have defeated many where a claimant’s account of the collision has been rejected by the court. It is usual for the court to give reasons why the claimant’s account has been rejected, for example, the court could find that claimant is mistaken, has an unclear recollection or sometimes, that they are dishonest. However, the courts have sometimes appeared reluctant actually to go the “extra mile” and find a claimant to be dishonest, especially based on his account of the accident alone, unless supported by evidence of dishonesty in other aspects of the claim. 

Asghar v Galliford Try Plant & Another was a case in which the claimant’s case in respect of collision circumstances was not only rejected, but where the court went further and made a finding of fundamental dishonesty.  Is this case part of an evolving understanding by the courts as to what the basis of a finding of fundamental dishonesty should be?

The facts

Mr Asghar, in bringing his claim for personal injury, contended that he exited a roundabout in the left hand lane and accelerated. There was nothing ahead of him when, all of a sudden, Galliford’s driver drove into collision with the rear of his vehicle with considerable force. Mr Asghar braked and came to a stop and, as he did so, there was a secondary impact from behind, which was caused by the second defendant’s driver shunting the Galliford vehicle into the claimant’s vehicle.

In contrast, Galliford’s driver said that he left the roundabout in the right hand lane.  As he was approaching the part of the road where the lanes merged, the claimant’s vehicle passed him at some speed, on his left, cut in front of him and immediately performed an emergency stop.  This appeared to be because a vehicle in front of both vehicles suddenly braked for no obvious reason. Galliford’s driver braked but he was unable to prevent a collision with Asghar’s vehicle. There was also a secondary impact when the second defendant’s driver collided with the Galliford vehicle.

Fraud was not pleaded, but, in addition to concerns about the nature of the collision, we, on behalf of Galliford, drew the court’s attention to the Mr Asghar’s apparent involvement in, undisclosed, earlier accidents. 

Judgment

The court considered the conflicting versions of the events, and the issues with Mr Asghar’s evidence, and it came down in favour of the evidence of Galliford’s driver. Whilst the court did not go so far as to find that the claimant had deliberately induced the collision, it did find that Mr Asghar’s account of the circumstances was so inherently different to the Galliford driver’s account, that it must follow that the claimant’s account was fundamentally dishonest.

In handing down his judgment, DDJ Birkby stated:-

“Courts frequently prefer one account to another in road traffic cases and it does not necessarily mean that the losing party has been dishonest. But here, the accounts are completely different. I do not think it possible for the claimant to be mistaken as to what happened. He says that [Galliford’s driver] drove into collision with the rear of his vehicle and he denies overtaking on the left. He cannot be mistaken and I have made a finding that he did overtake. So I think that points towards dishonesty.”

In reaching such a judgment, the judge penalised Mr Asghar by removing his qualified one way costs (‘QOCs’) protection, meaning the defendants were entitled to enforce their legal costs against him. 

Comment

The courts have taken some time, since the introduction of QOCs on 1 April 2013, to fully utilize the exception under CPR 44.16 (1), which provides that ‘orders for costs made against the claimant may be enforced… …where the claim is found on the balance of probabilities to be fundamentally dishonest’.

However, we are finding that the way in which the courts deal with dishonesty is evolving, and the concept has now progressed from being applied in only the more obvious and extreme examples of dishonesty, such as where it can be shown that a claimant has fabricated a loss, to being considered in the wider, and more subjective, context of the claimant’s account of the collision circumstances.

It might be a little while yet before fundamental dishonesty is routinely considered in “straightforward” liability disputes, but DDJ Birkby’s approach may indicate the increasing feasibility, for defendants, of raising fundamental dishonesty arguments irrespective of whether or not extensive other ‘fraud indicators’ are present.  And rightly so.  If fundamental dishonesty is defined as dishonesty that goes to the heart of the claim, then a lie about how the accident actually happened ought to meet that definition without question. 

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