Discontinue at your peril: obtaining fundamental dishonesty post-discontinuance

Articles | Fri 28th Feb, 2020

It is frequent occurrence in road traffic claims for defendant insurers to raise allegations of fundamental dishonesty during the course of litigation, or, indeed, at trial. This is often in response to claimants suggesting that they suffered multiple injuries, despite being involved in a low-velocity impact where minimal vehicle damage was sustained. However, allegations of fundamental dishonesty can lead to claimants discontinuing shortly before trial, leaving the defendant in a situation whereby it has expended large costs that it usually cannot recover. Yet, in Alpha Insurance A/S v (1) Lorraine Roche (2) Brendan Roche [2018] EWHC 1342 (QB), the High Court permitted the insurer to have the issue of fundamental dishonesty determined where the claimants had discontinued one day before trial.

I recently acted for the Defendant in the matter of Sukhmeet Uppal v John Igeyn, where the Judge made a finding of fundamental dishonesty following the Claimant’s unexplained discontinuance three days before trial.

Factual background

The Claimant issued proceedings against the Defendant following a road traffic accident that occurred at Gatwick Airport on the 21st July 2015. The Claimant alleged that he had suffered injuries in the accident and sustained losses. Whilst liability was admitted by the Defendant, causation and quantum remained in dispute.

Following standard disclosure and exchange of witness statements, it became plain that there were a number of inconsistencies in the Claimant’s evidence. These included:

• the Claimant’s injuries changing from “left hand side of neck pain” (as stated in his CNF) to severe headaches, neck pain, lower back pain, travel anxiety, flashbacks and nightmares.
• the development of the Claimant’s symptoms varying throughout the documentary trail. His symptoms were reported as beginning 10 days after the accident, as well as starting 48 hours after the accident.
• the Claimant failing to report any relevant past medical history to his expert. Despite this, his medical records indicated he had been involved in a road traffic accident in December 2014, some 7 months prior to this accident. In the December accident, he suffered neck and lower back pain. His medical records indicated that, two months before the index accident, lumbar flexion was still limited to 70% of normal. The Claimant had also had an x-ray in respect of his spine. One month before the index accident, the Claimant was reported as being “hands off” at his job, as he was continuing to have neck and lower back pain. No mention of this was made to his expert.
• the Claimant reporting that he had visited his GP following the accident. However, the Claimant’s medical records indicated that he had not visited his GP.
• the Claimant being inconsistent as to how much time, if at all, he had taken off of work in respect of the index accident. He also failed to mention that he had been on reduced hours/was altering his duties at work, following his December accident.

The trial was listed for the 10th May 2019. In March 2019, the Defendant wrote to the Claimant inviting him to discontinue his claim and highlighted the sheer number of inconsistencies in his evidence. The Defendant gave the Claimant 14 days to discontinue and expressed that, if the Claimant did not discontinue his claim, a finding of fundamental dishonesty would be sought.

The Claimant pressed ahead. On the 3rd May 2019, a case summary and proposed bundle index was sent by his solicitors.

On the 7th May 2019, the Claimant’s solicitors sent the Defendant a notice of discontinuance, dated the same day. No reasons were given in respect of the discontinuance.

The Defendant made an application on the 8th May 2019 for a finding that the Claimant had been fundamentally dishonest. In the alternative, the Defendant sought an order that the notice of discontinuance be set aside and the claim be struck out as an abuse of process. That application was due to be heard on the 18th September 2019, however the Claimant’s solicitors came off the record. The Claimant was consequently ordered to write a witness statement addressing the application. If if he failed to comply with the Order, he was to be debarred from relying upon any evidence not already before the Court at the application hearing.

The application came before EJ Freer on the 11th February 2020. The Claimant had failed to comply with the Order and subsequently was debarred from relying upon any further evidence. The Judge was troubled at the hearing by the Claimant’s failure to disclose his previous injuries and accident, as well as his late discontinuance. When giving judgment, the Judge detailed the inconsistencies in the Claimant’s evidence, specifically that there was no mention of his previous injuries to his expert, nor any evidence that he attended his GP following the index accident. He considered that the Claimant must have known that his previous accident and injuries were relevant to his claim. He also outlined the inconsistencies in respect of his time off of work and symptomatology, as well as his late discontinuance, which had not been explained. The Judge considered that Claimant was fundamentally dishonest pursuant to section 57 of the Criminal Justice and Courts Act 2015. He disapplied QOCS and ordered that the Claimant pay the Defendant’s costs summarily assessed in the sum of £11,000.

Conclusion

Allegations of fundamental dishonesty by insurers in road traffic claims can prompt claimants to discontinue late in the day. Provided the evidence indicates that there has been dishonesty on the part of a claimant, insurers have an option to apply for a finding of fundamental dishonesty to seek their costs.