In Pegg v (1) Webb (2) Allianz Insurance plc  EWHC 2095 (QB), Martin Spencer J overturned the trial judge’s finding that a personal injury claim arising from a road traffic accident was not fundamentally dishonest. To read the judgment, please click here.
Pegg is the latest in a series of decisions where claims have been found fundamentally dishonest on appeal. It it also the third decision from Martin Spencer J looking at fundamental dishonesty in the context of gaps and inconsistencies in the Claimant’s medical evidence.
The claim arose out of a road traffic accident on 2 June 2016. The Claimant pursued a claim for injuries to his neck, left elbow and left knee. The Second Defendant alleged that the accident was contrived between the Claimant and the First Defendant and, if it did occur, that the Claimant had been fundamentally dishonest as regards his alleged injuries.
The Decision at First Instance
The trial judge, HHJ Rawlings, held that the collision was genuine but that the Claimant had failed to prove the nature and extent of his injuries due to inconsistencies and omissions in his medical evidence. The claim was accordingly dismissed. The judge declined to find the claim fundamentally dishonest, however, on the basis inter alia that he could not be sure what questions the medical expert had asked the Claimant.
The Decision on Appeal
The Second Defendant appealed against the judge’s findings on fundamental dishonesty. As above, the appeal was allowed. At , Martin Spencer J held that “no judge could reasonably have failed to have come to the conclusion that the claim … was a fundamentally dishonest one, perpetrated by fundamentally dishonest accounts to the only medical expert and in the various court documents.” In so holding, Martin Spencer J applied his own remarks in Molodi v Cambridge Vibration Maintenance Service  EWHC 1288 (QB) at .
Reasons for finding the claim in Pegg fundamentally dishonest included (see ): the fact that the Claimant sought no medical assistance at all after the accident; the fact that physiotherapy was arranged by the Claimant’s solicitors; the Claimant’s failure to mention the index accident when he subsequently attended a walk-in centre following a quad bike accident; the Claimant’s failure to mention that quad bike accident to the medico-legal expert; and “positive lies” told by the Claimant to the medico-legal expert as regards his ongoing symptoms and physiotherapy treatment.
As to costs, Martin Spencer J ordered the Claimant to pay the Second Defendant’s costs with a 30% reduction on account of the evidence and court time directed towards the question of whether the accident was bogus (which argument failed and was not pursued on appeal).
Key Points and Tactical Considerations
The key point that emerges from Martin Spencer J’s judgment in Pegg is that there is a distinction between inconsistencies and inaccuracies, which are a fact of life, and lies, which are positively manufactured.
Accordingly, Defendants will succeed when they eliminate all other explanations until all that remains is the inexorable conclusion that the Claimant is a liar.
On the other hand, in order to successfully resist an allegation of fundamental dishonesty, a Claimant must identify and explain, at the earliest possible stage, any inconsistency or inaccuracy. This could be by way of an explanation in the Claimant’s witness statement; further evidence from the relevant medico-legal expert; or (further) evidence from the author of an inconsistent or inaccurate record.
Finally, where an allegation of fundamental dishonesty fails, a Defendant can expect to be penalised in costs.
For a full analysis of the decision in Pegg, including a detailed review of the evidence, please see our case note.