Substantial Injustice

More detailed guidance when considering whether dismissal of a fundamentally dishonest claim would cause ‘substantial injustice’.

In the case of Williams-Henry v Associated British Ports Holdings Ltd [2024] EWHC 806 (KB), the Claimant’s claim for personal injury damages was considered Fundamentally Dishonest and so was dismissed under Section 57 of the Criminal Justice and Courts Act 2015. In the Judgment, a detailed consideration of the issues relating to the 'substantial injustice' provisions of Section 57 were provided.

The Claimant was allowed some mitigation in that she was not ordered to repay interim payments that she had received in the sum of £75,000 (but in any event, no application for repayment of the interim payments had been made).

The substantial injustice exception was not otherwise applied, and the claim dismissed on the basis of Fundamental Dishonesty

The Case

Liability was agreed and the matter proceeded to an 11 day trial (2 devoted to cross examination of the Claimant alone) solely on quantum.

On a full liability basis, the claim was claimed at £3.5 million. The Defendant's Counter Schedule offered £374,000 (or over half a million pounds on a full liability basis).

The Claimant had made some recovery and had even returned to work before a neuropsychologist recommended that she cease work for rehabilitation.

Fundamental Dishonesty Finding

The Court found her to be a Fundamentally Dishonest Claimant in the light of contrasting DWP records, personnel records, social media posts, extensive video surveillance and a life insurance application form arising after the accident. The points were summarised by Mr Justice Ritchie as conscious gross exaggeration and fabrication of the true duration and/or extent of her alleged injuries.  :

Substantial Injustice

S57(2) states that, where a claimant has been fundamentally dishonest in the presentation of a claim, the court must, on application by the defendant, dismiss the entire claim, even the legitimate aspects, unless the claimant will suffer substantial injustice.  There have been numerous cases where applications for a substantial injustice finding have failed but few have offered guidance on the criteria to apply.

The court offered guidance on 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 particularly including:

1. The amount claimed when compared with the amount awarded, suggesting that a lesser difference between the two would weigh more heavily in favour of substantial injustice being found.

2. The scope and depth of the dishonesty, minor, moderate or gross.

3. The effect of the dishonesty on the construction of the claim by the Claimant and the destruction/defence of the claim by the Defendant and the extra work required to deal with the dishonesty aspect. .

4. Policy considerations; the saving to insurers in paying the genuine aspects of the case against the transferred cost to the NHS.

5. The nature and culpability of the Defendant’s tort. Possible examples, could include but would not be limited to, sexual abuse, intentional assault or drug fuelled/drink, dangerous driving being more culpable than mere momentary inadvertence.

6. The extent to which costs will be eradicated by an offset of the genuine damages..

7. Interim payments and how the Claimant could afford to pay them back.

8. Effect on the Claimant’s life, housing, finances and ability to work in the event that the entire claim is dismissed.

The court took account of evidence served by the Claimant to the effect that if the court  found Fundamental Dishonesty then the Claimant would commit suicide. The Claimant had never attempted suicide previously so considered that he could not take into account the threat of or the risk of suicide when making the decision on Fundamental Dishonesty. He did, however, consider this risk as relevant to the issue of substantial injustice.

Comment

The High Court provided the clearest guidance yet on the considerations to be applied when consider.

The outcome also highlights the weight and value of social media and surveillance evidence and the need (in the case of social media evidence in particular) for the same to be preserved and disclosed when relevant.