No fundamental dishonesty but pursuer’s “lack of candour” lands him with expenses

The Inner House of the Court of Session has held that, while a pursuer’s claim for personal injuries had been exaggerated, it was not appropriate to…

Grubb v Finlay [2018] CSIH 29

Executive summary

The Inner House of the Court of Session has held that, while a pursuer’s claim for personal injuries had been exaggerated, it was not appropriate to make a finding of fundamental dishonesty. However, the pursuer’s “significant lack of candour” in advancing various arguments meant that he was liable for two-thirds of the defender’s expenses.

Background

The pursuer suffered personal injuries when the defender reversed into his vehicle at low speed while he was parked at a petrol filling station. The pursuer averred that he suffered a whiplash injury to his neck as well as an impingement of the nerve roots on his left hand side which led him to develop a chronic pain condition as well as a chronic adjustment disorder. As a result, he had problems sleeping, had not been able to drive since the accident, and had lost his job as a chef after a disagreement at work which he blamed on his own frustration caused by ongoing pain and tiredness. He was also forced to stop working as a takeaway driver for which he was paid “cash in hand”. The pursuer initially valued the claim at £500,000.

Liability was admitted and the proof restricted to quantum.

Fundamental dishonesty

After the first four days of evidence, the defender noted several inconsistencies in the pursuer’s claim and applied for the court to summarily dismiss the claim under s.57 Criminal Justice and Courts Act 2015 alleging that the pursuer had exaggerated his claim for financial gain.

Despite telling the court and medical experts that he had been unable to drive due to his injuries, the pursuer had been convicted of driving without insurance four months post-accident. He had also initially claimed to be his father to recover the insurance proceeds which were in his father’s name. Further investigations found that the pursuer had been seen installing satellite dishes while he claimed to be injured and that he had also been given a ‘final warning’ from his previous employer after he was caught working on a market stall while signed off work for ill-health. The defender averred that these inconsistencies amounted to wilful exaggeration and fundamental dishonesty.

The Outer House of the Court of Session refused the defender’s application to dismiss the claim. Lord Kinclaven held that, while the court has the power to dismiss a claim, this power should be used sparingly and was not appropriate at such an early stage of proof. The application was reconsidered after all of the evidence was heard but the allegation of fundamental dishonesty was again held to be unfounded. The judge found that the pursuer’s claim was evidenced by CCTV footage which showed that the accident had occurred and expert witnesses who found no evidence of wilful exaggeration of the pursuer’s symptoms which were consistent with the type of accident. The judge did not agree with the defender’s argument that the claim was a “complete fabrication”. Dismissing the claim would have caused injustice to the pursuer by depriving him of damages to which he was entitled and would have allowed the defender to avoid responsibility for admitted negligence.

The judge granted decree for payment of £7,321 to the pursuer. The final payment was in stark contrast to the £500,000 initially claimed and the £183,000 which was eventually sought at trial. While the judge believed that the pursuer continued to experience pain and other symptoms, he did not believe that they could still be attributed to the accident and the claim was limited to the first 12 months post-accident.

Expenses

On the issue of expenses, the judge acknowledged that expenses will generally be awarded to the successful party and that the defender had lodged a tender for £30,000 which had been withdrawn before the trial started. However, the judge found the pursuer to be liable for two-thirds of the defender’s expenses. While the pursuer had not been found to be fundamentally dishonest, his evidence had not been entirely credible or reliable in several areas and his relative success of £7,321 in damages was limited. Were it not for the pursuer’s “significant lack of candour”, the claim could have been concluded more quickly and with a shorter proof. While the pursuer’s unreliability was not sufficient to deprive him of a finding of liability, it was appropriate to reflect his conduct in the expenses of the claim. The reduction of one third reflected the fact that the defender had also advanced arguments which were held to be ill-founded.

Appeal to the Inner House

Both parties appealed to the Inner House. The defender reclaimed that Lord Kinclaven should have found that the claim was fundamentally dishonest as the pursuer’s dishonesty meant that the defender could not be afforded a fair trial. The pursuer appealed against the order for expenses arguing that expenses should fall on the defender as the party who had caused the litigation.

Both appeals were refused. Giving the lead judgment, the Lord President held that, while the dismissal of a claim during evidence is possible, it is a power which must only be exercised in rare and exceptional cases. The pursuer was supported by CCTV evidence, expert evidence and an admission of liability which meant that it would have been inappropriate to dismiss the claim. Delivering the opinion of the court, the Lord President said: “The pursuer did not make a fundamentally dishonest claim. He made a good, if exaggerated, claim”.

With regard to expenses, while noting that Lord Kinclaven’s decision regarding expenses was “surprising”, the Lord President found that there were no grounds to challenge his findings. Appeals on the matter of expenses should be rare as the trial judge has full knowledge of the case and the parties’ conduct and has full discretion to make an appropriate order. Lord Kinclaven had shown regard to all relevant factors and was within his discretion to take issue with the pursuer’s exaggeration.

Comment

This is an interesting decision which provides some guidance on the Scottish courts’ approach to the issue of fundamental dishonesty in personal injury claims. The Lord President, while accepting that the pursuer’s claim could have been exaggerated, found that this level of unreliability or dishonesty was not fundamental to the claim as a whole. This demonstrated a shift in approach from that of the English courts which have previously held that dishonesty in one area can damage an entire claim. In London Organising Committee for the Olympic and Paralympic Games (in Liquidation) v Sinfield [2018] EWHC 51 (QB), an exaggerated and dishonest special damages claim was enough to damage the entire claim where the judge held that the fact that the majority of the claim had been genuine “was neither here nor there where there is a finding of fundamental dishonesty”.

It remains to be seen whether this decision will mark a shift in judicial decision-making in favour of pursuers across England and Wales and Scotland, or whether it will be confined to its own facts. The Inner and Outer Houses of the Court of Session seemed particularly concerned that a finding of fundamental dishonesty would cause injustice by depriving the pursuer of all damages when the claim had not been entirely fabricated. In this case, Lord Kinclaven chose instead to penalise the pursuer by way of an order to pay the majority of the expenses of the action. We will continue to monitor the litigation landscape concerning pleadings of fundamental dishonesty to see whether this approach is adopted more commonly in the future.

For further information or assistance on any of these issues please contact:

Seonaid Busby, Partner on 0141 375 0866 or seonaid.busby@weightmans.com

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