Finding of fundamental dishonesty in catastrophic PTSD claim
On 2nd July 2018 HHJ Coe KC dismissed this £850,000 quantum-only personal injury claim, finding that the claimant, a film director, was guilty of fundamental dishonesty, and was caught by s.57 of the Criminal Justice and Courts Act 2015.
The claimant argued that on the back of minor physical injury cause by an RTA, he had suffered a devastating PTSD with Dissociative Symptom. An early suggestion of subtle brain injury was abandoned before trial.
Acting for the claimant was Marcus Grant of Temple Gardens Chambers, instructed by New Law of Cardiff. DWF (Bristol) and William Audland KC acted for the successful defendant.
Among the claimant’s experts was Dr Steven Allder, the well-known proponent of subtle brain injury cases, who conceded in the joint statement that the claimant did not in fact have a brain injury.
Dogged investigation by DWF revealed evidence confounding the claimant’s account that he was significantly traumatised and disabled by the accident which had affected his ability to work, read, follow a TV programme, and do decorating work. The evidence included:
- Facebook entries revealing the claimant commenting on the accident on the day it happened and subsequently joking about it with friends;
- Surveillance evidence showing him working.
The defendant had also identified former friends and colleagues of the claimant to give evidence about his work performance and symptoms, and had pursued a collateral issue of the purported inability of the claimant and his wife to remember the identity of a counsellor who had treated them. Their dishonesty even on this issue assisted the judge in reaching her conclusions on their credibility on more central issues.
HHJ Coe KC found that the claimant’s performance in the witness box was unconvincing and deliberately staged, and he had deliberately and consciously lied on certain issues. Neither was his wife a straightforward or truthful witness. The claimant had exaggerated the severity and impact of the accident, asserting that his vehicle was subject to a violent deceleration and rotational forces, and that he had brief post traumatic amnesia (often seen as classic ingredients of a subtle brain injury) and in particular had materially changed his account of the accident over time.
The judge considered and has now added to the rash of recent cases in 2018 on s.57 including LOCOG v Sinfield [2018] EWHC 51; Razumas v MOJ [2018] EWHC 215; Wright v SIS [2018] EWHC 812 (in which Catherine Foster of Crown Office Chambers acted for the defendant), Richards v Morris [2018] EWHC 1289 and Molodi v Cambridge Vibration Maintenance Service [2018] EWHC 1288. Judgment in all of these cases save for LOCOG was delivered after the hearing of the evidence here. HHJ Coe KC was satisfied that dishonesty was proved (following Ivey v Genting [2018] AC 391) and that the dishonesty was close to the heart of the claim. The claimant therefore lost even the genuine aspect of his claim, which she valued at £4,500. That sum was in any case exceeded by interim payments of £13,000 and by the defendant’s part 36 offer.
Lessons from the case include:
- the importance of relentless pursuit of disclosure and factual evidence by defendants, which here included Facebook entries usually protected by security settings; detailed Part 18 requests; investigation of collateral issues such as the claimant’s history of paying tax; and securing supportive evidence on the claimant’s work history even from friends and colleagues who might be expected to support his evidence;
- a forensic investigation of all medical records;
- choice of the right experts;
- the latitude that a court may give a defendant to run a case on conscious exaggeration and fundamental dishonesty even when these have arguably not been expressly pleaded, provided that there is no unfairness to the claimant in doing so.
- The unavailability of privilege protection for communications about the case with a colleague (not the opposing expert) by an expert engaged in joint statement discussions – Pinkus v Direct Line (unreported, 2.1.18, HHJ Cotter KC, Lawtel 2.2.18).
Article written by Patrick Blakesley KC
