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Fundamental dishonesty finding in a high-value brain injury claim – Patrick Blakesley KC acts for the successful defendant

On 10 April 2024 Mr Justice Ritchie handed down a judgment in the case of Kirsty Williams-Henry v Associated British Ports depriving a claimant who had suffered a moderately severe  brain injury of all of her damages on the grounds of her fundamental dishonesty.  He concluded that it would not be a “substantial injustice” to do so, for the purposes of s.57(2) of the Criminal Justice and Courts Act 2015, and set out the factors he considered relevant to any enquiry into substantial injustice.  This is the first time since the 2015 Act came into force that that a court has set out such a test. The judgment can be found here: KWH v Associated British Ports Ritchie J Judgment 10.4 HD.

The 27-year-old Claimant was injured in July 2018 in a fall from the Defendant’s breakwater in Port Talbot.  She suffered a moderately severe brain injury and skull fractures requiring craniotomy and cranioplasty; hearing loss; fractures to her pelvis and left ankle; and depression and anxiety.  She made a remarkable recovery.  Four months later she was able to return to work as an analyst for an insurance company, but only part time.  Liability was settled in March 2022 at two thirds in her favour.  She then abandoned her reliance on NHS rehabilitation and instead used interim payments to fund a raft of private rehabilitation.  In the meantime she alleged that her condition had deteriorated, so much so that she stopped work in October 2022 and was medically retired in November 2023.

In July 2023 the Defendant served extensive video surveillance evidence and then obtained disclosure of the Claimant’s voluminous social media records from 2018 to 2023.  The parties’ expert witnesses, sixteen of whom gave oral evidence at trial, commented at length on the new disclosure and compared it to what the Claimant had told them on assessment.

Ritchie J found that the Claimant had lied repeatedly about her levels of pain, the extent of her physical and mental disabilities, her care requirements, her ability to undertake activities of daily living, and the effect of the injury on her social life.  He noted that in parallel she had sought to defraud the DWP in applications for benefits, and an insurance company in a proposal for life insurance.  He concluded that he would have assessed her untainted damages at some £885,000 gross of liability, compared to her claim of around £3.5 million, but that she should not receive any damages at all by operation of s.57 of the 2015 Act.

Disagreeing with the ruling of Knowles J. in in London Organising Committee of the Olympic and Para Olympic Games (in liquidation) v Sinfield [2018] EWHC 51 that “substantial injustice must mean more than the mere fact that the Claimant will lose his damages for those heads of claim that are not tainted with dishonesty”, Ritchie J set out the factors he considered relevant:-.

  • The amount claimed compared to the amount awarded or notionally awarded;
  • The scope and depth of the dishonesty;
  • The effect of the dishonesty on the costs of bringing and defending the claim;
  • The scope and level of the claimant’s assessed genuine disability and how much of a burden would be placed on the taxpayer if the claimant received no damages;
  • The nature and culpability of the defendant’s tort;
  • Whether the claimant’s damages would be substantially reduced or eradicated by adverse costs awards anyway;
  • Whether the claimant would be able to repay interim payments; and
  • The effect of dismissal of the claim on the claimant’s life, such as whether she would need to sell her house and live on benefits.

Weighing these factors, Ritchie J ruled that the “substantial injustice” saving provision should not apply here, and dismissed the claim in its entirety.

Patrick Blakesley KC acted for the successful Defendant, instructed by Jonathan Head of DWF and QBE Insurance.  Marcus Grant acted for the Claimant, instructed by Hugh James of Cardiff.

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