On 10 April 2024, the High Court handed down its decision in Williams-Henry v Associated British Ports Holdings Ltd [2024] EWHC 806 (KB). In that judgment the presentation of the Claimant’s claim for personal injury was considered fundamentally dishonest and so was dismissed under section 57 of the Criminal Justice and Courts Act 2015 (“the 2015 Act”).

In considering whether there would be ‘substantial injustice’ in dismissing the claim, the Court outlined a suggested approach which may serve to assist courts in considering this issue in the future.

Fundamental Dishonesty: A Reminder of the Key Law

A claim for personal injury is vulnerable to dismissal in its entirety, pursuant to section 57(1)-(2) of the 2015 Act, where the Court finds that the Claimant is entitled to damages but the Claimant has been fundamentally dishonest. This is so even where there are ‘genuine’ elements to the Claimant’s alleged injuries. The exception to this is where ‘the Claimant would suffer substantial injustice if the claim were dismissed’, in line with section 57(2).

Courts have thus far been reluctant to define what might amount to ‘substantial injustice’. For instance, in London Organising Committee of the Olympic and Paralympic Games v Sinfield [2018] EWHC 51 (QB) it was noted at [65] that:

Given the infinite variety of circumstances which might arise, I prefer not to try and be prescriptive as to what sort of facts might satisfy the test of substantial injustice. However, it seems to me plain that substantial injustice must mean more than the mere fact that the Claimant will lose his damages for those heads of claim that are not tainted with dishonesty … What will generally be required is some substantial injustice arising as a consequence of the loss of those damages.

Factual Background

The circumstances of this claim are tragic. On 21 July 2018, the Claimant was out on the pier in Port Talbot, after having been drinking. The concrete pier had previously been equipped with safety railings along its edge, although these had been taken out some years prior. The Claimant stepped back in the dark, whereupon she fell off the edge of the pier, down 4-5 metres to the rocks and sand below.

The Claimant suffered various injuries as a result, including a moderately-severe brain injury, and on pursuing a claim against the Defendant liability was agreed at two thirds in the Claimant’s favour. Quantum, however remained in dispute, and the matter went to a trial lasting 11 days, two of which were devoted to cross-examination of the Claimant herself.

The Defendant alleged fundamental dishonesty on evidence having emerged that the Claimant was exaggerating her injuries. Surveillance evidence was obtained which showed the Claimant performing various activities, including longer-distance walking, contrary to the reports she had made to the various medical experts in the litigation. Further, reliance was placed on exaggerated comments made by the Claimant about her injuries in a claim for an insurance policy and in her claims for Personal Independence Payment from the DWP.

Whilst seeking to explain the alleged dishonesty in her evidence, the Claimant asserted that if she were found fundamentally dishonest, she would commit suicide.

The Decision

Weighing up the various accounts of the Claimant’s injuries and her oral evidence at trial, Ritchie J concluded at [100] that overall he ‘found the Claimant to be dishonest and manipulative both in Court and in what she said to the medico-legal experts’.

Whilst claimed damages were in excess of £2.3 million, the Court held that the Claimant’s genuine damages were properly valued at £596,704. In light of the Claimant’s dishonesty, her claim was dismissed in its entirety.

The Court addressed the Claimant’s assertion that she would commit suicide if found fundamentally dishonest by saying at [204] that ‘Whilst this evidence is deeply troubling, the focus of the Claimant’s witness statement was the money … I consider that I cannot take into account the threat of or the risk of suicide when making the decision on fundamental dishonesty. However, I do consider that these are relevant to the [substantial injustice] issue’.

The Court’s Approach to ‘Substantial Injustice’

At [178] of his decision, Ritchie J set out what he considered to be the correct approach when deciding whether substantial injustice arises, once fundamental dishonesty is established. He set out the relevant factors as being ‘all the circumstances’ but as including:

  • ‘The amount claimed when compared with the amount awarded’, commenting that a smaller difference between the two will weigh more heavily in favour of substantial injustice being found.
  • ‘The scope and depth of that dishonesty found to have been deployed’, with greater dishonesty weighing more against a finding of substantial injustice.
  • ‘The effect of the dishonesty on the construction of the claim by the claimant and the destruction/defence of the claim by the defendant’. In other words, what are the costs consequences arising from the Claimant’s dishonesty?
  • ‘The scope and level of the Claimant’s assessed genuine disability caused by the defendant’. Interestingly, Ritchie J found it was relevant that depriving a dishonest claimant of damages for more serious ‘honest’ injuries ‘would transfer the cost of care to the NHS, social services and the taxpayer generally’, which may support a finding of substantial injustice.
  • ‘The nature and culpability of the defendant’s tort’.
  • ‘What the Court would do in relation to costs if the claim is not dismissed’.
  • Whether interim payments had been made, how much and whether the Claimant can afford to repay them.
  • ‘Finally, what effect will dismissing the claim have on the claimant’s life’.

Applying those factors to this case, Ritchie J noted at [203] of his decision that:

  • The difference between the honest and dishonest parts of the claim was not beyond usual bounds, but ‘the dishonest parts of the claim inflated damages sought by over £1 million’.
  • The scope of the dishonesty was wide and had a very substantial effect on the trial.
  • The Claimant made a very good recovery from her genuine injuries, and so ‘depriving the Claimant of damages will not transfer much, if any, cost of care’ to the taxpayer.
  • The Defendant’s tort was at the lower end of culpability.
  • It was probable that any genuine damages would be reduced, or even eradicated, by the Claimant’s liability for the Defendant’s costs as well as her likely liability to pay her own lawyers’ fees.

In terms of any impact on the Claimant’s life. The Court found that she was capable of work and that her current mental health difficulties ‘were caused by her own dishonesty’. However, at [206] the Court considered that requiring the Claimant to repay the £75,000 in interim payments which she had already received, could ‘be an injustice to the Claimant because she would then be homeless, jobless, depressed and suicidal’.

Noting that no application for repayment of the £75,000 in interim payments had been made, the Court decided not to order any repayment of these sums.

That aside, the Court held that no substantial injustice would arise from dismissing the claim.

Comment

This decision presents an attempt by the High Court to set out more explicit guidance when considering whether dismissal of a fundamentally dishonest claim would cause substantial injustice. Practitioners on both sides of such litigation can likely expect such factors to feature prominently in consideration of ‘substantial injustice’ in the future.

Weight was placed on the fact that ‘the Claimant was wholly unrepentant when she gave evidence’. Therefore, claimants can expect their level (or lack) of contrition to be factored into the equation when they are found fundamentally dishonest.

As to the relevance of a claimant’s ‘genuine’ injuries, Ritchie J commented at [175] of his decision that ignoring the very dismissal of the claim itself ‘is imposing a blindfold on the Judge which the Act itself does not impose’. He advocated the view that ‘one cannot ignore the very thing which s.57(3) takes away when considering the injustice of the taking away’. Accordingly, practitioners might expect the value of ‘genuine’ damages to become part of the overall ‘context’ considered by judges when looking at substantial injustice in the future.

However, Ritchie J did not go as far as to displace the previous requirement for ‘something more’ than the simple loss of genuine damages, noting the intended punitive effect of Section 57 of the 2015 Act on this front.

All in all, this case outlines a suggested approach to considering ‘substantial injustice’ in dishonest personal injury claims. Further, it has sought to clarify how exactly the value of a dishonest claimant’s ‘genuine’ injuries might feature in the overall assessment of whether ‘substantial injustice’ arises.

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