Fundamental Dishonesty: Amdur v Krylov
The case of Amdur v Krylov (13.4.21) is an engaging and colourful recent example of how the Court continues to consider the issue of Fundamental Dishonesty (“FD”).
Two noteworthy points arise from the judgment of HHJ Backhouse:
- The importance of distinguishing between those elements of claims which are dishonest, and those which simply do not have sufficient evidence in support.
- The fact that a Claimant has abandoned or corrected a dishonest claim will not necessarily allow a Claimant to escape a finding of FD.
The Background
The Claimant, Mr Maurice Amdur, is a clairvoyant, providing psychic readings to the rich and famous around the world, having appeared in a number of TV productions, and a self-styled ‘wheeler-dealer’. He was involved in the index road traffic accident in 2015 for which liability was admitted, causation and quantum being disputed. The Defendant contended that the Claimant had been fundamentally dishonest. He had been represented until about 10 months prior to trial, but proceeded in person to a 4-day multi track trial before HHJ Backhouse at Central London County Court in March 2021.
The Claimant’s case appears to have varied widely in terms of heads of losses and amounts claimed. After initially issuing his claim with a value of up to £100,000, he amended his claim form in 2019 to claim unlimited damages and in the initial schedule of loss had sought inter alia recovery for replacement hire car delivery, massage treatment, travel to physiotherapy, extra cost of take away food, loss of value of damaged car, loss of rental income and the sum of £50,000 for watches and a painting which he had had to sell at an undervalue to cover living expenses. By the time of trial, he had abandoned all these heads of loss, and clarified that in addition to general damages, he was claiming 2 years’ loss of earnings (£150,000), credit hire and the cost of physiotherapy.
The Judge’s Findings on Damages
HHJ Backhouse was generally critical of the much of the Claimant’s evidence. When considering his orthopaedic expert’s evidence, she commented that “Despite being reminded…more than once that his job was not to act as an advocate for the Claimant…. [he] was unable to prevent himself sliding into that role…. whereas the court requires, and is entitled to expect, independent expert opinion.” [para 30] She preferred the Defendant’s medical evidence on all points of disagreement, remaining unsatisfied that the index accident caused any injury to the Claimant’s shoulders or chest, and found only a one-year exacerbation of his neck and back pain with associated symptoms. She assessed general damages at £5,000 including the 10% uplift.
(Physiotherapy was assessed at £1,180 and the credit hire claim of £15,732 was held not recoverable as the Claimant did not need to hire a car. Cost of repairs were £4,274.95.)
The loss of earnings claim was clearly the most controversial part of the claim, and the Claimant had put this head of loss in different ways across various documents. By the time of trial, he had disavowed most of the Schedule of Loss submitted with the Particulars of Claim with a statement of truth signed by him, but maintained in his evidence that he was unable to work as a psychic reader for over 2 years post-accident. The judge was critical of the Claimant’s evidence in support of this head of loss, commenting on the absence of any reliable evidence on which to base an award for loss of earnings. In considering the Claimant’s forensic accountancy report, HHJ Backhouse commented “I have to say that it is surprising that she was prepared to put her name to this report which is worthless.” [para 73] The judge was prepared to accept that the Claimant was not able to work as much as usual in the months after the accident but found that he was able to conduct some psychic readings even in the period immediately after the accident. She was not however satisfied he could prove any loss of earnings.
Thus, subject to the issue of FD, the claim was assessed at a total of £10,454.95.
Fundamental Dishonesty: HHJ Backhouse’s decision
The Defendant set out 6 grounds in the Re-amended Defence and Updated Counter-schedule on which it was alleged that the Claimant had been fundamentally dishonest. These were strenuously denied by the Claimant.
HHJ Backhouse, in paras 88-91 of her judgement, summarised the relevant principles in considering section 57 of the Criminal Justice and Courts Act 2015:
- A claimant would be held to be fundamentally dishonest if he had acted dishonestly and that he had thus substantially affected the presentation of his case, either in respect of liability or quantum, in a way which potentially adversely affected the defendant in a significant way, judged in the context of the particular facts and circumstances of the litigation.” Sinfield v LOCOG [2018] EWHC 51
- The words “substantially affects” were intended to convey the same meaning as ‘going to the root of’ the whole of a claim or a substantial part of it – Gosling v Hailo as approved in Howlett v Davies [2017] EWCA Civ 1696
- Dishonesty is to be judged by the criteria laid down by the Supreme Court in Ivey v Genting Casinos [2017] UKSC 67. The court must ascertain subjectively the individual’s knowledge or belief as to the facts. The question whether his conduct was dishonest is to be determined by applying the objective standard of ordinary, decent people.
- The use of the past tense in s57 (‘has been’) and the case of Roberts v Kesson [2020] EWHC 521 both show that abandoning or correcting dishonest claims will not necessarily allow a claimant to escape a finding of FD.
One of the Defendant’s allegations (“allegation (e)”) of FD – that the Claimant had advanced a false claim for sales of items at an undervalue – was rejected by the judge, as she made the distinction between dishonest claims and those with no or insufficient evidence to prove them. She said:
“I also bear in mind…. that there is a difference between claims advanced dishonestly and claims for which there is no or no sufficient evidence. In my judgment, allegation (e) falls within the latter category. The Claimant has not produced any evidence as to the purchase or sale of the items or as to their value but there is no evidence that this was a dishonest claim.” [para 93]
The judge remained unsatisfied that the other allegations of FD were made out save for one. The Claimant did positively maintain his claim that he was unable to work as a psychic reader for 2 years or more after the index accident and the judge found that this was untrue. “Clearly, he must have known that he did that work and I find that in this respect the Claimant has been dishonest.” [para 96]
She then went on to consider whether or not this dishonesty went to a substantial part of the claim and she found that it did:
“I am also satisfied that this is FD in that the dishonesty went to a substantial part of the claim. At its lowest, the Claimant was seeking £80,000 for lost psychic readings…and six-figure sums for loss of earnings generally. This head of claim formed a substantial proportion of the value of the claim and I also accept that the presentation of the claim in this way adversely affected the Defendant’s ability to settle the claim.” [para 96]
Having found FD, the judge considered whether the Claimant would suffer substantial injustice if the claim were dismissed, noting per Knowles J in Sinfield that this must mean more than the mere fact he will lose his damages for those heads of loss not tainted with dishonesty. This is for the Claimant to prove and he did not address this issue or provide any evidence of injustice. Whilst commenting that “s57 is undoubtedly a draconian remedy”, HHJ Backhouse held she must dismiss the claim.
This case confirms again the interesting point arising from the language of s57: that the real question is whether the Claimant has been fundamentally dishonest, not whether he has persisted in that dishonesty (per Jay J in Roberts v Kesson (para 54)), such that abandoning or correcting a claim that has been previously dishonestly advanced does not prevent a finding of FD later on.
Amdur also usefully illustrates the relatively high threshold which must be reached in order to support a finding of FD. Only one of the FD allegations put forward by the Defendant was made out. The judge remained unsatisfied that the other claims were dishonest. Notably, the judge commented that despite the Claimant’s attempts to blame his former solicitors, he had signed the statements of truth on the documents they had prepared and he persisted with the dishonest claim when acting in person.
However, one finding of FD is enough for the dismissal of the claim, and clearly the Defendant’s diligent work in defending the claim paid off.
Written by Rosanna Hellebronth.
