QOCS: The Strike Out and Fundamental Dishonesty Exceptions in Action

Introduction

There are still relatively few findings of fundamental dishonesty being made by Courts. Despite the fact that this is obviously an important exception to the QOCS regime, the fundamental dishonesty threshold is proving a difficult hurdle for Defendants to meet. This article explores a recent finding of fundamental dishonesty and the lessons that can be learned by Claimants and Defendants in such cases.

The Facts

This case arose out of claims brought by three Claimants for injuries arising out of a road traffic accident which had allegedly occurred on 12 December 2013. It was alleged that the First Claimant had been driving along a major road, with the Second and Third Claimants as passengers, when the First Defendant had suddenly emerged from a minor road, in to a collision with the nearside of the vehicle in which the Claimants were travelling.

All three Claimants brought claims for personal injury and the First Claimant also brought a claim for vehicle damage and physiotherapy. Despite all three Claimants being represented by the same firm of Solicitors, the claims were not initially issued together, with the Third Claimant’s claim being brought by way of separate proceedings which were issued around one month after the First and Second Claimants’ claims. The claims were later consolidated by consent and proceeded to trial together.

The Second Defendant was the insurer of the First Defendant, however indemnity was withdrawn after the First Defendant failed to respond to enquiries or co-operate with any of the investigations in respect of the accident. The Second Defendant’s defence put all three Claimants to strict proof in respect of their claims and put their credibility in issue.

The First Defendant did not attend the trial of the matter, which was listed for a half day hearing on 7 January 2016.

Strike Out

At the start of the hearing the First and Third Claimants faced an application to strike out their claims on the basis of defective statements of truth on their witness statements. Both statements contained statements of truth certifying that the witness statement had been read to them, however these fell short of the requirements for an interpreter’s statement of truth per CPR 32.8 and there were no witness statements provided in the Claimants’ native language.

The First Claimant had signed no other statement of truth but the Third Claimant had also signed a statement of truth certifying that she had read the witness statement. The Judge therefore struck out the First Claimant’s claim but allowed the Third Claimant’s claim to proceed, indicating that how far she was able to speak and understand English would go to the weight which he would attach to her evidence instead.

The Second Defendant requested that the order reflect that the First Claimant’s claim had been struck out and was therefore subject to the exception to QOCS set out at CPR 44.15(1)(c), which provides:

44.15—Exceptions to qualified one-way costs shifting where permission not required
(1) Orders for costs made against the claimant may be enforced to the full extent of such orders without the permission of the court where the proceedings have been struck out on the grounds that—
(a) the claimant has disclosed no reasonable grounds for bringing the proceedings;
(b) the proceedings are an abuse of the court’s process; or
(c) the conduct of—
(i) the claimant; or
(ii) a person acting on the claimant’s behalf and with the claimant’s knowledge of such conduct,
is likely to obstruct the just disposal of the proceedings.

The Judge agreed that the case fell within that exception and so the Second Defendant was entitled to an enforceable costs order in respect of defending the First Claimant’s claim.

The Evidence

The evidence of the remaining Claimants then faced significant challenge from the Second Defendant in respect of inconsistencies, in particular in relation to the failure to report previous accidents and the way in which their injuries had been described to treating clinicians, medical experts and in their written evidence. Both Claimants were cross-examined with reference to the various documents which all contained different information to that which was contained in their witness statements.

The Second Claimant’s oral evidence was that she had a very poor memory and could remember almost nothing about the accident. She was however able to say that she had seen the First Defendant’s lights as his vehicle emerged from the minor road. She also admitted under cross-examination that she had been in a previous accident, though could not remember what she had told the medical expert about this, relying on her poor memory by way of explanation.

The Third Claimant also gave weak oral evidence, often being unable to answer questions under cross-examination or professing not to properly understand the question. She too referenced the lights of the First Defendant’s vehicle. However, when pressed regarding her previous accident the Third Claimant was much more evasive; first denying she had suffered any injury in that accident, before being taken to her medical records which detailed injury, whereupon she asserted that such injury was minor in nature. She was also unable to properly explain why an entry appeared in her husband’s (the First Claimant’s) medical records indicating that she had suffered no injury in this accident.

The trial went part-heard as the Third Claimant was taken ill part-way through closing submissions. The case was therefore back before the Court again on 26 April 2016 for closing submissions and judgment. On that occasion the memory of the Judge was refreshed by taking him through the relevant documents and reminding him of the evidence which had come out of cross-examination at the last hearing.

The Judgment

Although having been invited to draw adverse inferences from various features of the case, including the conduct of the First Defendant and the extensive inconsistency presented by the Claimants throughout, the Judge declined to do so. He found instead that there had been an accident and it had been due to the negligence of the First Defendant, basing such a finding on the evidence of the Second Claimant regarding the moment of collision, finding her to be a truthful witness. He made significant criticisms of the Third Claimant’s evidence however, noting areas of genuine concern in her evidence and finding that failing to disclose her previous accident was an “extraordinary piece of disingenuous behaviour” for which she had provided an entirely unacceptable explanation. He therefore dismissed the Third Claimant’s claim as he found that her evidence could not be relied on in respect of causation. He did not consider the Second Claimant’s evidence to be tainted by the Third Claimant and so that claim was successful.

The Second Defendant therefore asked the Court to make a finding of fundamental dishonesty as against the Third Claimant, and reflect in the order that the Second Defendant was entitled to an enforceable costs order pursuant to CPR 44.16(1), which provides:

44.16—Exceptions to qualified one-way costs shifting where permission required
(1) Orders for costs made against the claimant may be enforced to the full extent of such orders with the permission of the court where the claim is found on the balance of probabilities to be fundamentally dishonest.
(2) Orders for costs made against the claimant may be enforced up to the full extent of such orders with the permission of the court, and to the extent that it considers just, where—
(a) the proceedings include a claim which is made for the financial benefit of a person other than the claimant or a dependant within the meaning of section 1(3) of the Fatal Accidents Act 1976 (other than a claim in respect of the gratuitous provision of care, earnings paid by an employer or medical expenses); or
(b) a claim is made for the benefit of the claimant other than a claim to which this Section applies.
(3) Where paragraph (2)(a) applies, the court may, subject to rule 46.2, make an order for costs against a person, other than the claimant, for whose financial benefit the whole or part of the claim was made.

The Judge found that the Third Claimant’s conduct, particularly in respect of the failure to disclose her previous accident, did amount to fundamental dishonesty. The Second Defendant was therefore also awarded an enforceable costs order in respect of defending the Third Claimant’s claim.

Conclusion

This case provides an interesting example of the type of conduct which will lead to a fundamental dishonesty finding. The inconsistencies across the documents provided the background for the finding here but it was clear that of primary importance to the Judge was the quality of the oral evidence which was provided by the Third Claimant. Both the Second and Third Claimant had failed to disclose previous accidents, both to their medical experts and in their written witness evidence; the difference between the two was that the Second Claimant was quick to own up to the mistake and provide an explanation during her oral evidence, whereas the Third Claimant gave oral evidence which the Judge described as evasive and she was not able to explain, adequately or at all, the reason for the omission. It may be difficult therefore for Defendants in similar circumstances to know whether or not a finding is likely in advance of hearing live evidence at trial.

Lessons can also be taken from this case by Claimants and Defendants in respect of witness evidence, and the consequences of getting it wrong. Representatives of Claimants ought to ensure that their clients have given evidence verified by the appropriate statement of truth, providing translation services and the corresponding certificates where necessary. A failure to do so may result in strike out, with an enforceable costs penalty attached. Defendants should be alive to potential areas of weakness in a Claimant’s evidence, which may make the case one appropriate for strike out with a corresponding enforceable costs order.

Rebecca Jones represented the Second Defendant in the above matter of Karimnejad and others v 1) Stoiescu and 2) Skyfire and Evolution Insurance.