Success for William Audland QC in Pinkus v Direct Line [2018] EWHC 1671 (QB): catastrophic injury claim dismissed for fundamental dishonesty.

The claimant claimed damages for serious personal injuries following a road traffic accident. After subtle brain injury had been excluded it essentially became a claim for minor whiplash and severe PTSD with dissociative symptoms (which it was said explained inconsistencies in his histories and presentation). The claim was initially a 7-figure claim but was reduced to a 6-figure claim shortly before trial. Liability for a collision was admitted at a very early stage and was not in issue, but the nature and severity of the collision, and the injuries and losses alleged to be caused thereby, all were.

The findings

The claimant was found to have consciously and deliberately exaggerated the nature and severity of the accident, the physical and psychiatric symptoms he suffered thereafter (including his undergoing treatment and rehabilitation “in order to further his claim”). He had dishonestly suggested that he was fired from his job due to his loss of anger control; had deliberately exaggerated the “vast majority of the claim”; had deliberately staged some aspects of his presentation in the witness box; and had lied to the court.

The claimant’s wife was also found to have exaggerated and fabricated her account; and had not been truthful when purporting to be unable to recall the details of the counsellor who had treated them both before the claimant’s accident (which had prevented the notes and records being obtained).

The claim was dismissed for fundamental dishonesty pursuant to section 57 of the Criminal Justice and Courts Act 2015. But for the dismissal the judge would have awarded the claimant £4,729 in damages and interest.

In terms of the expert evidence:

  • Neurology: Dr Allder conceded in the joint statement that the claimant had not suffered any brain injury, and in cross-examination conceded that whether his alleged symptoms were attributable to the accident was outside his expertise and was a matter for the psychiatric experts.
  • Neuropsychology: the evidence of Dr Steven Kemp was preferred to that of Dr Pierce, who was found to have lacked objectivity and not to have acted in accordance with her responsibilities and duties as an expert.
  • Psychiatry: the evidence of Dr Neal was preferred to that of Dr Howard who was found to be unwilling to acknowledge the inconsistencies in the claimant’s evidence fully, and to be clinging onto the possibility of brain injury as an explanation for the symptoms.

A few points of interest

Pleading Fundamental Dishonesty

This was only pleaded for the first time in a Counter-Schedule shortly before trial, and even then the pleading did not descend into many particulars, expressly stating that some issues would be explored in cross-examination. The claimant’s attempt (in reliance on the well-known case of Three Rivers) to debar the defendant from raising and pursuing the issues of fundamental dishonesty and exaggeration at trial on the basis of an inadequate pleading failed. The judge followed Howlett v Davies and another [2017] EWCA Civ 1696.

The importance of pursuing key disclosure

The defendant’s pursuit of pre-accident medical records involved a Part 18 Request for the claimant (and his wife) to identify the counsellor who had treated them prior to the accident. They purported not to be able to recall any details which would enable him/her to be identified and the records to be obtained. Further cross-examination of both on this issue led to findings of fabrication in relation to their evidence in this regard.

The defendant pursued and obtained further disclosure of the claimant’s Facebook account after he changed his privacy settings. Ultimately this disclosure proved more valuable than surveillance.

The impact of a finding of dishonesty on the contemporaneous records

The judgment reveals how once a finding of fundamental dishonesty has been made (which includes the claimant’s histories and presentations to his treating doctors) a claimant will no longer be able to rely on the contents of those contemporaneous records to corroborate his case.

The importance of independent witnesses of fact

The defendant called its insured driver, who had admitted liability for the collision at the earliest stage. The judge accepted our submissions that this rendered him an independent witness with no interest in the litigation. This was important to the finding of dishonesty in relation to the nature and severity of the accident.

The defendant also traced and called two former friends and work colleagues of the claimant who had worked with him since the accident. They gave evidence as to his symptoms and his ability to work. This was important independent evidence underpinning the findings of dishonesty in relation to the claimant’s symptoms and level of functioning.

The consequence of an order for indemnity costs

The judge made an order that the claimant pay all the defendant’s costs on an indemnity basis which, of course, means that the assessment of those costs will not be constrained by the budget previously set.

 

The judgment can be found here.