Nadia Whittaker secures a finding of fundamental dishonesty and a dismissal of a clinical negligence claim in excess of £900,000
Appearing before His Honour Judge Sephton QC sitting as the Judge of the High Court in Iddon v Warner (2021), Nadia Whittaker instructed by Edward Dixon of Medical Protection Society is successful in striking out a clinical negligence claim pursuant to section 57 of the Criminal Justice and Courts Act 2015 on the basis that the Claimant was fundamentally dishonest in the presentation of her claim.
Mrs Iddon brought a claim for damages against her general practitioner, Dr Warner, alleging a missed diagnosis of breast cancer. The missed diagnosis meant that Mrs Iddon was only diagnosed some 8 months later than she would have been and had to undergo mastectomy and axillary dissection which would otherwise have been unnecessary. Mrs Iddon claimed that these treatments left her with debilitating chronic pain that blighted her life. Dr Warner has admitted liability and in July 2019 judgment was entered for Mrs Iddon for damages to be assessed. She then received an interim payment on account of damages in the sum of £105,000 and on account of her costs in the sum of £100,000.
By December 2019, evidence was identified from open sources, which indicated that during the period when Mrs Iddon claimed she was significantly disabled by reasons of her chronic pain, her name appeared among the finishers of various sporting events, including the Great North SwimRun, which involved a 7km run, a 450m swim, a 1.5km run, a 630m swim, a 2.3km run and a 760m swim completed in one sequence. Evidence obtained was disclosed to Mrs Iddon and she was asked to comment on it. Mrs Iddon denied that she participated in any of the events identified and claimed that her friend, Amanda Anstey, participated under her name because the entry fee had already been paid and she herself was unable to take part due to her chronic pain. When asked for evidence in support, in January 2020 Mrs Iddon served a signed witness statement from herself and her husband describing in some detail the circumstances in which Ms Anstey was asked to, agreed and then participated in the events. A draft unsigned witness statement from Ms Anstey was also served, confirming the same.
In the meantime, further attempts to investigate the issue of Mrs Iddon’s participation in the events led to identification of official event photographs, which showed Mrs Iddon running and exiting open water in a wetsuit. A number of other events were also identified (including 10 km runs and 1 mile open water swims), together with photographs that showed her participation. Mrs Iddon was confronted with that evidence at a round table meeting and, eventually, accepted that she lied about Ms Anstey taking her place. She then came up with an “explanation” as to why she failed to mention any of her sporting achievements to the experts, the Defendant or the Court. Mrs Iddon claimed that she procured an illegal substance, which she believed to be “cannabis oil” and that this substance enabled her to participate successfully in the more taxing of the events identified. However, she claimed that, following participation, she reverted to the same disabled state which she described in her pleadings, witness evidence and to the medical experts. Mrs Iddon claimed that she was fearful of prosecution for possession of this substance which she believed to be illegal and that this was the reason for her silence.
At the trial that took place over 4 days in December 2020, Mrs Iddon accepted that she lied about her participation in the sporting events, but claimed that she was not fundamentally dishonest within the meaning of section 57 and, in any event, was inviting the Court to find that the dismissal of the claim would cause her to suffer substantial injustice within the meaning of section 57(2). She maintained that without the alleged “cannabis oil” she was just as disabled as she described herself to be in the Court documents and to the medical experts.
The Judge found that Mrs Iddon was fundamentally dishonest and set his conclusions on this issue as follows:
“91. Mrs Iddon’s actions in this litigation must be measured against my findings that she did not suffer from chronic pain of any significance and that she trained for, and performed in, various sporting events in 2017 and 2018. Notwithstanding the reality as I have found it to be, Mrs Iddon:
- Asserted to the medical experts that she suffered from debilitating pain and concealed from them her participation in her sporting activities.
- Made and served her witness statement of 6 March 2018, which advanced the account that she was severely disabled by chronic pain.
- In May 2018, verified Amended Particulars of Claim in order to advance the claim that she suffered “Severe chronic post-surgical pain and associated dysesthesia and numbness in the left chest wall, left shoulder/arm and both hips, causing severe disability, fatigue and psychological injury.”
- In January 2020, recruited her husband and Amanda Anstey to put forward a false account of her sporting activities.
- Made and served her witness statement of 20 January 2020 in which she denied training or participating in three open water swims when in fact she had done so.
- In her witness statement of 1 June 2020, represented that she had made full disclosure of her sporting activities when she knew that the list of activities was incomplete because the Worden Park run was not mentioned.
- In her witness statement of 1 June 2020, advanced the excuse that she had previously lied because she was anxious about being prosecuted for possession of cannabis oil, when in fact she had never possessed cannabis oil. She also falsely claimed that it was only by using hemp oil and cannabis oil that she was able to participate in her sport.
- Verified with a statement of truth two schedules of loss in which, by reason of her alleged chronic pain, damages exceeding £900,000 were sought.
- Continued to advance her account that she was in chronic and debilitating pain when she was in the witness box.
- I have no doubt that Mrs Iddon was well aware of her training and sporting achievements and of the fact that she was not suffering debilitating chronic pain. I find that she deliberately took the steps I have outlined in the preceding paragraph of this judgment in order to mislead the defendants and the court about the extent of her injuries so as to make the consequences of the defendant’s breach of duty appear much more serious than they were. By the standards of ordinary decent people, her actions were dishonest. What is more, I believe that Mrs Iddon knew that they were dishonest.
- In my opinion, Mrs Iddon’s dishonesty amply justifies the adjective “fundamental”. I approach the issue from three directions. Firstly, to deploy the dichotomy proposed by HHJ Moloney QC and approved by the Court of Appeal in Howlett v Davies, Mrs Iddon’s dishonesty did not go to some incidental or collateral part of the claim; it went to the heart of her claim. Secondly, to adopt the words of Julian Knowles J in LOGOC v Sinfield, her dishonesty has substantially affected the presentation of her case – indeed, it has pervaded her case to the extent that Mrs Iddon has scarcely taken any step in the action that was not tainted by dishonesty. Thirdly, the effect of her lies was to seek to inflate the value of a case which I have held to be worth just over £70,000 into a case worth over £900,000. In reaching the conclusion that Mrs Iddon has been fundamentally dishonest, I have carefully excluded from my consideration that it is probable that Mr Iddon and Christopher Barnes were dishonest too: the statute requires me to consider whether the claimant has been fundamentally dishonest.”
The Judge assessed the damages that would have been awarded to Mrs Iddon in the absence of her dishonesty in the sum of £70,050.32. This figure was gross of deductible CRU, which was in the sum of £9,949.95. The Order made on 2 March 2021 following judgment being handed down specified that the amount of damages the Claimant would have received net of recoverable CRU in respect of the primary claim but for the dismissal of the claim was recorded in the sum of £60,100.37.
On the point of whether the Claimant would suffer substantial injustice if her claim were dismissed, the Judge considered the context in which the statute was enacted and the oft-quoted dicta of Moses LJ in South Wales Fire and Rescue Service v Smith  EWHC 1749 (Admin). The Judge then observed at  “Mrs Iddon did indeed apologise in her witness statement of 1 June 2020 and again when she gave evidence. I find that her apology was offered because she had been caught out in dishonesty and not because she felt genuine remorse. If she were genuinely remorseful, Mrs Iddon would have offered the court a truly honest account of her activities. Instead, as I have found, she simply substituted for the account in which her lies had been discovered, another untruthful version.”
The Judge rejected a submission made on behalf of the Claimant that because Mrs Iddon purchased a house with the interim payment she received, she changed her position, whereby repayment would cause her to suffer substantial injustice. The Court may order repayment of an interim payment and the change of position as a result of an interim payment cannot represent a defence to an order to repay. Also, Mrs Iddon’s damages in the absence of her dishonesty were less than the interim payment and therefore her house would have to be sold in any event. The Judge concluded that Mrs Iddon’s dishonesty was “very grave. She lied repeatedly about her injuries, she continued to lie after she had been found out and, most seriously, she persuaded others to lie on her behalf. In my judgment, the culpability and extent of her dishonesty far outweighs any injustice to her in dismissing her claim; the dismissal of this claim seems to me to be exactly the evil to which Parliament directed its mind in enacting section 57.”
The Judge allowed the Defendant 4 weeks from the date of the Order to make a contempt application pursuant to CPR rule 81n.3(5).
To read the analysis on LexisNexis, please here.