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The evolution of fundamental dishonesty

The High Court overturns decision not to make a finding of fundamental dishonesty, where that dishonesty was ‘staring [the judge] in the face’.

Daniel O’Brien v Royal Mail Group Limited [2019] EWHC 2815 (QB)

Executive summary

In our recent article regarding the county court decision of Asghar v Galliford Try Plant & Another we talked about the potential reversal of the trend were the court will reject a claimant’s case but will not, despite what one might consider to be the logical next step, make a finding of dishonesty.

Daniel O’Brien v Royal Mail Group Limited was such a case in that, at first instance, a circuit judge wholly rejected the claimant’s case, but decided that he was unreliable rather than dishonest. On appeal, the High Court overturned the decision not to make a finding of fundamental dishonesty, where that dishonesty was ‘staring [the judge] in the face’.

The facts

The claimant’s claim arose out of a road traffic collision. He contended that as he approached a roundabout he moved from the right-hand lane into the left lane, he indicated and slowed down to stop and give way for traffic when the defendant’s van crashed into the back of his car.

According to the claimant, the collision was sufficient to throw him violently forwards and backwards in his seat and cause pain in his neck, shoulders, lower back and knee. He attended A&E and a week later, he visited his GP. It was at least eight months until he could attend the gym and he sustained loss of earnings over a period of six weeks.

The defendant’s driver described a somewhat different incident. He said that he noticed the claimant’s car in the outside lane, which was drifting in its lane and appeared as if it might hit the side of his van. He said traffic was slowing, and as it did so the car came alongside his van and he could see into it clearly and he noted the driver was holding a mobile phone and trying to type on it. He shouted to the claimant to ask him to put down his phone. The claimant offered an expletive retort and then sped up his vehicle, darted in front of the defendant’s vehicle and slammed on his brakes as traffic was stopping. The defendant’s driver said that the claimant thereby cut him up, leaving him with insufficient braking distance to avoid a very light collision with the claimant’s car.

First instance judgment

The first instance judgment of HHJ Beech was a wholesale rejection of the claimant’s case. She found that:

  • The collision occurred at no more than five miles per hour and it was insufficient to cause any damage to either vehicle or injury to the claimant;
  • The claimant was, in fact, not injured and his evidence that he had sustained quite severe and immediate pain in his back and neck was untrue;
  • The claimant’s evidence, that he attended hospital and his GP, was unsupported by medical records and untrue;
  • The claimant had not shown that he was off work for six weeks as a result of the collision.

Despite these damaging findings, the circuit judge was not prepared to make a finding of dishonesty, let alone a finding of fundamental dishonesty. Instead, the judge took the view that the issues with the claimant’s evidence were due to ‘either carelessness or because he is simply unreliable and not worthy of belief’.

Judgment on appeal

The defendant appealed the judge’s decision not to make a finding of fundamental dishonesty. In accepting the defendant’s arguments, Mr Justice Spencer found:

“In my judgment, this was not a case which the Learned Judge could make a finding that she could dismiss the Claimant’s case in the way that she did and yet attribute her dismissal of the Claimant’s case to mistake and carelessness on the part of the Claimant. The Judge’s findings went to the very root of this claim…..

In all the circumstances the effect of the Judge’s findings was that this was a wholly bogus claim on the part of the Claimant. There had been no accident as he described, there had been no injuries as he described, and there had been no loss and damage as he had described. All of that was simply untrue and made up.....

In those circumstances in my judgment no judge in the position of HHJ Beech could have failed to find that this was a case of fundamental dishonesty. The fundamental dishonesty was, in my judgment, staring her in the face, and she failed to follow the logical conclusion of her own findings in relation to his matter. That logical conclusion is one which this Court is in a good position to find in the alternative on the basis and on the back of the findings which Judge Beech herself made, and in those circumstances the appeal is allowed and there will be a finding of fundamental dishonesty in this case.”

The full judgment is here.

Comment

In our last article, we remarked that the courts have taken some time to fully utilize “fundamental dishonesty”. However, these recent cases appear to show that the courts are increasingly comfortable with the concept and have, over time, moved from a position where only arduous investigation and specific pleading from the defendant could move the court to make a finding to a place where the there is more awareness of court’s power to make a finding and a preparedness to make such findings based on the judge’s assessment of the claimant alone. The fact that the High Court had to overturn a lower court decision shows there is work to do but the signs, as we head into a new decade, are encouraging.

Weightmans are the counter insurance fraud and recoveries specialists. If you would like to discuss your counter fraud and/or recoveries strategy, please contact Jeff Turton, Principal Associate, on 0151 242 6968 or at jeff.turton@weightmans.com, or Chris Ball, Partner, on 0151 242 7926 or at chris.ball@weightmans.com.

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