Home > First use of power to strike out following Summers v Fairclough

First use of power to strike out following Summers v Fairclough

31st January 2013

The transcript of the decision of HHJ Mitchell sitting at Central London County Court on 9 October 2012 is now available. He struck out the claim of Mrs Barbara Fari against Homes for Haringey. The decision has not been appealed.

The decision is of significance, because it is the first strike out of a fraudulent/exaggerated claim following the Supreme Court’s ruling in Summers v Fairclough Homes Limited [2012] 1 WLR 2004. Summers is authority for the proposition that under CPR 3.4(2) the court has power to strike out a statement of case on the ground that it is an abuse of process at any stage in the proceedings, including – but in very exceptional circumstances – at the end of a trial.

So what happened in Mrs Fari’s case?

The background is that Mrs Fari fell over a cracked paving stone and suffered a lower limb injury that it was alleged significantly affected mobility. Liability was admitted.

Mrs Fari signed a Schedule claiming £740,000. The Defendant’s medical expert became suspicious. Surveillance was arranged. HHJ Mitchell’s judgment describes striking discrepancies in the footage. On the basis of the footage, both parties’ experts agreed, that “the Claimant significantly exaggerated her disability on both occasions she was examined“. The Defendant’s expert went further and expressed the view that “the Claimant had deliberately exaggerated her disability with the intention to deceive”.

On 9 October the claim came on for trial, and Sadie Crapper of 39 Essex Street, instructed by Plexus’s Jennifer Harris, applied to strike out the claim on the grounds of abuse of process. The Claimant represented herself. Her solicitors had “pulled out“.

HHJ Mitchell agreed with the Defendant’s expert that the sum claimed in the Schedule was “outrageous” and a “grossly distorted view of what the claim is worth“.

In considering Ms Crapper’s submissions that “the dishonesty in this case is so wide and so deep that [he] really ought to strike it out” Judge Mitchell quoted para 41 of Summers v Fairclough, per Lord Clarke, and also para 49:

“It is very difficult indeed to think of circumstances in which [Striking out after a trial] would be proportionate. Such circumstances might, however, include a case where there had been a massive attempt to deceive the court but the award of damages would be very small.”

Judge Mitchell noted that he was dealing with the strike out application at the start of a trial. The trial probably could not have gone ahead that day because Mrs Fari’s solicitors were not in attendance. Judge Mitchell was also exercised by the Claimant’s unexplained failure to pay the setting down fee of £1,200 in the context of the court’s policies, statutory duty to collect fees and running costs.

Judge Mitchell recognised that strike out would be draconian, but he was concerned that a claim allocated to multi track because of gross exaggeration of injuries would continue in the system causing delay and causing others to wait for their trials to be heard.

Judge Mitchell remarked:

"… this court is used to the fact that claimants come and exaggerate their claims or lie about them completely. It is something which is not in the interests of justice, it is not in the public interest because it wastes a vast amount of time and a vast amount of taxpayer’s money”

He concluded:

“In my judgment, the only appropriate order I can make is to strike out the claim and indeed the sanction for costs that goes with it. These false claims or exaggerated claims are costing a fortune.” He added later: ” I cannot adjourn this case. It just is not worth the amount of money that has been spent on it and it seems to me in those circumstances too, they support the conclusion that I should strike out this claim.“

As an aside, Judge Mitchell was also critical of Mrs Fari’s solicitors, as is clear:

“I should say that I am not entirely happy with the way the claimant’s solicitors have dealt with this. They are on the record, they have not attended this morning and they have not apparently written to the court or made an application to come off the record. This is another thing which is far too prevalent at this court, solicitors who are neither on the record nor off. These solicitors are on the record and they should really be here or they should have made an application to come off the record.”

Finally, Ms Crapper indicated to Judge Mitchell that she intends to take the matter further and apply for committal. Judge Mitchell transferred the claim to the High Court. He added that counsel in Barnes v Seabrook [2010] EWHC 1849 Admin, told him:

“… the Divisional Court appeared to be under the impression that it would take a few committals before people realised that this form of approach towards personal injury cases was not going to be tolerated. It may well be that this is going to become an example in its own right; I know not.”

Takeaways

  1. The Courts are willing to exercise the strike out power following Summers v Fairclough, leaving the Claimant with nothing, notwithstanding the prospect that the claim has some value
  2. This was probably the paradigm case: The surveillance obviously showed a stark mismatch between C’s presentation to experts and her genuine capacity; experts agreed that there was significant exaggeration; the amounts claimed in a schedule supported by a statement of truth were grossly excessive; the claim came before a very experienced Circuit Judge; court fees had not been paid
  3. Solicitors are reminded of the importance of applying to come off record.
  4. Upon strike out in the County Court, Defendants considering an application for committal should obtain transfer to the High Court
  5. Anecdotal evidence suggests the High Court takes the view that there will have to be several committals to signal it will not tolerate this sort of approach to personal injury claims.

Update

Ms Crapper applied successfully to Holroyde J on 22/1/13 to pursue committal proceedings against Mrs Fari and her husband on the grounds that there was a strong prima facie case that the wife, supported by her husband, had grossly exaggerated the extent of her injuries and disability. It is reported that Holroyde J commented:

"The history of the litigation, the extraordinary divergence of the picture painted by H and W and what the video recordings apparently showed, and the remarkable disparity between the true value of the claim and what W had sought established that there was a strong prima facie case. W had lost the entirety of her claim when it was struck out, she had been liable for costs, and she and H had suffered embarrassment due to publicity; however, there was a strong public interest in pursuing false claims and for them to be investigated by the court."

This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.

Contact

Please note that we do not give legal advice on individual cases which may relate to this content other than by way of formal instruction of a member of Hardwicke.  However if you have any other queries about this content please contact:

Sally Wollaston
Sally Wollaston
Business Development and Marketing Director
Menu