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LYING IN WAIT Ian Clarke on trial by ambush and fundamental dishonesty

Articles | Tue 5th Jul, 2022

Andrew Jenkinson v Gary Robertson [2022] EWHC 791 (QB)

Under what circumstances can a Defendant accuse a Claimant of fundamental dishonesty?  That was one of the central questions before the Court in the recent High Court decision of Andrew Jenkinson v Gary Robertson.


The Claimant was injured in a road traffic accident on 24 July 2013.  The Defendant accepted liability for the accident but fought on the issues of causation and quantum, disputing that the Claimant suffered from an ongoing injury to the mid-back.

Overall, HHJ Dodd, who heard the trial at first instance, was impressed by the Claimant, who was acting in person.  However, in relation to one issue the judge found that the Claimant had “demonstrated a willingness to manipulate the evidence to his perceived advantage”.

The judge quantified the value of the Claimant’s (admitted) injuries in the sum of £14,000.  That figure contrasted with the sum claimed in the Claimant’s final schedule of loss, which exceeded £500,000.

During closing submissions, the Defendant invited the Court to find that the Claimant had been fundamentally dishonest, so that section 57 of the Criminal Justice and Courts Act 2015 (“the 2015 Act”) was triggered.  The judge acceded to the application, holding that “I cannot find, on the balance of probabilities, that the Claimant, an intelligent man, sincerely believes the account of his symptoms that he has put before the Court. He has, I am afraid, been fundamentally dishonest in advancing the Claim”.

The Claimant appealed on a range of points.  The matter came before Fordham J who refused several grounds of appeal, but allowed the Claimant to appeal in respect of the finding of fundamental dishonesty on the basis that the judge’s finding was wrong and/or vitiated by procedural unfairness.

The substantive appeal was heard by Choudhury J who spent some time considering the authorities on fundamental dishonesty, and especially the Court of Appeal judgment on Howlett & anor v Davies & anor [2018] 1 WLR 948, which concerned the extent to which notice was required for an application under s.57 of the 2015 Act.  In that decision Newey LJ said at §31:

Statements of case are, of course, crucial to the identification of the issues between the parties and what falls to be decided by the court. However, the mere fact that the opposing party has not alleged dishonesty in his pleadings will not necessarily bar a judge from finding a witness to have been lying: in fact, judges must regularly characterise witnesses as having been deliberately untruthful even where there has been no plea of fraud. On top of that, it seems to me that where an insurer in a case such as the present one, following the guidance given in Kearsley and Klarfeld [2006] 2 All ER 303, has denied a claim without putting forward a substantive case of fraud but setting out “the facts from which they would be inviting the judge to draw the inference that the plaintiff had not in fact suffered the injuries he asserted”, it must be open to the trial judge, assuming that the relevant points have been adequately explored during the oral evidence, to state in his judgment not just that the Claimant has not proved his case but that, having regard to matters pleaded in the defence, he has concluded (say) that the alleged accident did not happen or that the Claimant was not present. The key question in such a case would be whether the Claimant had been given adequate warning of, and a proper opportunity to deal with, the possibility of such a conclusion and the matters leading the judge to it rather than whether the insurer had positively alleged fraud in its defence. (Emphasis added)


Basic fairness therefore requires that a Claimant should be afforded adequate warning, and a proper opportunity, to deal with a possible finding of fundamental dishonesty.  In Jenkinson v Robertson, the Defendant acknowledged that there had been no express notice given to the Claimant in advance of trial that fundamental dishonesty would be alleged in relation to his case as to the onset of symptoms.  The pleaded case had put the Claimant to proof on the injuries and symptoms and did not suggest anywhere that this was a case of exaggeration.

The Defendant’s position of appeal was that in correspondence it was asserted that the claim was “exaggerated” and “unreasonable” and that reference to section 57 afforded the Claimant with sufficient notice.  Choudhury J disagreed with those assertions and at §33 held:

A claim that is unreasonable is not necessarily dishonest; it may simply be misconceived. A claim that is exaggerated may be so because of the inclusion of losses that are wrongly believed to arise out of the accident in question. If a defendant wishes to establish that an exaggerated or unreasonable claim is fundamentally dishonest, then the basis on which that dishonesty arises or is alleged to arise ought to be made clear. The correspondence suggests that the losses claimed were unreasonable and exaggerated; it is not clear from the correspondence that it was being alleged that the Claimant was exaggerating the onset of symptoms. Any doubt that that was the case being put by the Defendant would have been cleared up by setting out its position with specificity.”

It must be said that the Defendant’s representatives did not cover themselves in glory, as the Claimant had in fact sought particulars of the allegations of dishonesty.  In a letter to the Defendant’s solicitors he noted that unspecified allegations of fundamental dishonesty “have no value or meaning” and made it “impossible for [the Claimant] to evaluate or respond to“.  The request for proper particulars was met with a refusal to supply any details and a statement that “[m]atters or findings of dishonesty will be a matter for the court”.  This approach, the Court thought, “is not a satisfactory way in which to pursue an application of fundamental dishonesty. Of course, the failure to provide particulars in March 2019 would not of itself preclude an application from being made subsequently, if the Howlett requirements of adequate notice and a proper opportunity to respond are met at the later stage. In the present case, that did not occur either.

At §40, Choudhury J concluded by saying:

In my judgment, the approach taken by the Defendant did not comply with the requirement of adequate notice. Indeed it is difficult to see that the Claimant was given any real notice at all, apart from a vague and deliberately unparticularised allusion to the possibility of a s.57 application. Merely alluding to such possibility does not, in the circumstances of this case, amount to adequate notice. Were that not so then defendants could routinely flag up the possibility of a s.57 application in advance of trial and then seek to rely upon the fruits of a successful cross-examination to support such an application without giving any further notice. I do not consider that approach to be fair or procedurally sound. A defendant can of course give a claimant fair warning that if the evidence turns out a certain way then a s.57 application might follow. However, a defendant could not simply rely on putting the claimant to proof in order to satisfy the requirement of adequate notice; something more specific would be required so as to alert the claimant (perhaps after the evidence has emerged under cross-examination) as to which aspects of his case were considered to be fundamentally dishonest.”



Post-Howlett it has long been understood that an allegation of fundamental dishonesty, whilst not requiring a formal pleading, did require proper notice.  The requirement notice has, arguably, been more honoured in the breach than the observance, with Defendants making vague mutterings in correspondence about exaggeration, credibility and the possibility of an application under section 57.  Choudhury J’s decision is a welcome corrective to this position, and a reminder that allegations of dishonesty are serious and require proper notice, and a proper evidential basis, if they are to succeed without any risk of reversal.

This article was first published in PI Focus, 1st June 2022








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