Case insight on Patel: fundamental dishonesty and section 57
Patel v Arriva & Zurich [2019] EWHC 1216 (QB) is a new addition to the growing body of reported decisions on s.57 of the Criminal Justice and Courts Act 2015.
By way of recap, s.57 provides that a court must dismiss a personal injury claim in its entirety where the Claimant has been “fundamentally dishonest”. That duty extends to even the honest part(s) of a claim, and is displaced only where the dismissal of the claim would cause “substantial injustice”. The only mercy to a dishonest Claimant is that he is entitled to set off the notional damages he would have received against any costs he must pay to the Defendant.
Background facts
This case arose out of a nasty road traffic accident in 2013. The Claimant was a pedestrian and was hit by the First Defendant’s bus. The Second Defendant was the insurer of the bus. The Claimant was very nearly killed – he suffered a cardiac arrest at the scene and was only saved by a bystander who performed CPR. He suffered a brain injury and spent weeks in hospital.
His case was that, following an initial recovery, he deteriorated dramatically and became completely bedbound. When visited by experts he sat mute and unresponsive in bed. Those experts were told by the Claimant’s litigation friend (his son) that this was typical. The Claimant’s expert diagnosed a severe conversion disorder.
In fact the whole performance was a charade. Surveillance footage was obtained showing the Claimant to be completely mobile, and able to converse and interact with others freely.
The decision
At a trial on liability the First Defendant was found 60% to blame for the accident. By that stage the Defendants had already raised the s.57 issue and in due course it came before HHJ Clarke for a hearing. She rejected the explanation advanced on the Claimant’s behalf (which took the usual “good and bad days” line) and found that he had been fundamentally dishonest. Substantial injustice was not established, and the claim was duly dismissed.
Points of interest
This case makes entertaining reading for the sheer magnitude of the attempted fraud, as well as the attempts by the Claimant and his litigation friend to dig themselves out of the hole they were in once they had been rumbled. That such a Claimant can expect to lose his entire claim is no longer noteworthy. Rather, this case is of interest for the following points of procedure:
- The finding of fundamental dishonesty was made without cross examination of the Claimant. The s.57 issue was determined at a hearing, not a trial, so, by CPR r.32.6, evidence was by way of statements only. The Defendants had not applied under CPR r.32.7 for an order that the Claimant’s witnesses be cross-examined. This point serves as a reminder that a specific direction should be sought for a Claimant to attend for cross-examination if that is thought desirable.
- The judge rejected the Claimant’s argument that the s.57 application was premature pending a judgment on quantum. It was sufficient that the Claimant had judgment for an amount to be determined.
- The corollary to this was that, when the judge determined the notional honest part of the claim (for the purposes of offsetting the Claimant’s lost damages against the Defendants’ costs entitlement under s.57(5)) she was only able to make a very broad-brush evaluation of what the Claimant would have received had he been honest. In the event this sum was assessed at just £5,750.
Written by Jack Macaulay.
