The judgment of HHJ Sephton QC (sitting as a judge of the High Court) in the case of Iddon provides a helpful exposition of the law and practice relating to fundamental dishonesty under s.57 of the Criminal Justice and Courts Act 2015, including how the Court should determine whether a claimant will suffer substantial injustice if the claim were dismissed. In this case, it was held that the fact that the claimant had used interim payments of damages to buy a house which she would be forced to sell if the claim were dismissed for fundamental dishonesty did not amount to substantial injustice.
Sara Iddon (the Claimant) brought a claim for damages against her GP, Dr Warner (the Defendant), alleging that she negligently missed a diagnosis of breast cancer in January 2014. As a result, the diagnosis was delayed until after the Claimant was referred for a mammogram by another GP who she saw some ten months later. In December 2014, the Claimant underwent a left mastectomy, axillary node clearance, and immediate breast reconstruction, followed by further reconstructive surgery in 2015-16. The Defendant ultimately admitted negligence on the basis that, but for the delayed diagnosis of breast cancer, the Claimant would have avoided the need for this extensive treatment, and would only have required a lumpectomy.
In June 2017, the Claimant commenced proceedings and served a Schedule claiming past losses totalling £76,634. She was subsequently given permission to serve Amended Particulars of Claim which alleged that she had developed severe chronic post-surgical pain causing severe disability, fatigue and psychological injury, and she thereafter served an up-dated Schedule claiming damages of £941,182, the large majority of which related to past and future care and loss of earnings. The witness statements initially served by the Claimant and other witnesses on her behalf stated that she was now significantly disabled due to chronic pain so as to require ongoing care and support, and also that she had formerly been a keen sportswoman before her mastectomy but could no longer undertake the running and swimming that she used to enjoy including various sporting events. The Defendant served a witness statement from a surveillance/intelligence analyst which disclosed that in 2017 and 2018 she had taken part in numerous sporting events, including 10 km runs and open water swims.
The Defendant amended its defence to plead that the claim should be dismissed on the ground of the Claimant’s fundamental dishonesty.
The judge found that the Claimant did not suffer from chronic pain of any significance. He assessed damages (subject to the issue of fundamental dishonesty) at £70,050 in total in respect of General Damages and past losses. Against the background of this finding about the absence of any significant chronic pain, the judge went on to make a number of further findings which were relevant to the issue of fundamental dishonesty. He found that the Claimant had taken steps to deliberately mislead the Defendant and the Court about the extent of her injuries, including asserting to the medical experts that she suffered from debilitating pain and concealing from them her participation in sporting events, serving an initial witness statement which falsely stated that she was severely disabled by chronic pain, recruiting other witnesses (including her husband) to put forward a false account of her sporting activities in subsequent statements in response to the Defendnat’s evidence about this, and serving a Schedule verified with a statement of truth which claimed damages in excess of £900,000 by reason of her alleged chronic pain.
In concluding that the Claimant had been fundamentally dishonest in relation to the claim the judge applied the law on dishonesty as set out by the Supreme Court in Ivey v. Genting Casinos UK Ltd [2017] UKSC 67 and the guidance about what amounts to fundamental dishonesty in Howlett v. Davies [2017] EWCA Civ 1696 and LOCOG v. Sinfield [2018] EWHC 51 (QB). He found that by the standards of “ordinary decent people”, the Claimant’s actions were dishonest and that she knew that they were dishonest. Further, the dishonesty was “fundamental” since it went to the heart of her claim, substantially affected the presentation of her case, and resulted in the claim being inflated from its true value at just over £70,000 to over £900,000.
The Claimant submitted that her claim should not be dismissed, however, on the ground that this would result in her suffering substantial injustice as provided by s.57(2) of the 2015 Act. She relied (amongst other things) on the fact that she had used interim payments of damages from the Defendant to buy her current home, which would have to be sold if the claim was dismissed. The judge noted the context in which the 2015 Act was enacted, namely because of the “toxic effects of dishonest claimants”. He also noted that CPR 25.8(2)(a) provides that any claimant who receives an interim payment runs the risk that the court will exercise the power to order repayment. Recording that he regarded the Claimant’s dishonesty “to be very grave”, he concluded that the claim should be dismissed since “the culpability and extent of her dishonesty far outweighs any injustice to her in dismissing her claim.”
Jonathan Hand QC, a barrister in Outer Temple’s clinical negligence team, commented on the case as follows:
As well as a stark warning to dishonest claimants, this judgment provides a helpful reminder to practitioners about how the Court will approach the issue of fundamental dishonesty when this is raised in a case, whether in the clinical negligence field or in other personal injury claims. In particular, it makes clear that a claimant who has been found fundamentally dishonest faces a high hurdle to persuade the Court not to go on and dismiss the claim on the ground that this will cause her to suffer substantial injustice.
