Our Edward Webb recently appeared in the county court on a fast-track personal injury case representing the Defendant. The background to the dispute was a collision between two vehicles within a cross roads, both drivers initially claiming their traffic light was green and thus had the right of way.
The Defendant driver did not attend trial and as such liability was conceded. However, causation and quantum remained in dispute.
Upon counsel for the Claimant becoming aware on the morning of the hearing that fundamental dishonesty was potentially at play, he applied to have the Defendant debarred from raising fundamental dishonesty on the basis of lack of notice. Reliance was placed on the case of Jenkinson v Robertson [2022] EWHC791 (QB) wherein the Honourable Mr Justice Choudhury stated [23]:
And quoting Master Davidson in Mustard v Flowers & ors [2021] EWHC 846 (QB) [22]:
‘Where the Defendant does have a proper basis for a plea of fundamental dishonesty and intends to apply under section 57 , then, subject to the direction of the judge dealing with case management or the trial judge, that should ordinarily be set out in a statement of case or a written application and that should be done at the earliest reasonable opportunity. What I am intending to discourage are pleas of fundamental dishonesty which are merely speculative or contingent’
It was submitted that warning the Claimant several minutes before the trial was not sufficient and tantamount to an ambush.
Mr Webb referred the Honourable Judge to the case of Howlett v Davies and Ageas Insurance [2017] EWCA Civ 1696 wherein Lord Justice Newey stated [31]
‘,,,the mere fact that the opposing party has not alleged dishonesty in his pleadings will not necessarily bar a judge from finding a witness to have been lying: in fact, judges must regularly characterise witnesses as having been deliberately untruthful even where there has been no plea of fraud,,, it must be open to the trial judge, assuming that the relevant points have been adequately explored during the oral evidence, to state in his judgment not just that the Claimant has not proved his case but that, having regard to matters pleaded in the defence, he has concluded (say) that the alleged accident did not happen or that the Claimant was not present. The key question in such a case would be whether the Claimant had been given adequate warning of, and a proper opportunity to deal with, the possibility of such a conclusion and the matters leading the judge to it rather than whether the insurer had positively alleged fraud in its defence’
The Honourable Judge agreed that the issue of fundamental dishonesty could be explored with a witness during cross examination and provided the points were adequately explored a relevant judgment could be made on the point.
Having heard the evidence, the submission of fundamental dishonesty (referring to London Organising Committee of the Olympic and Paralympic Games (in liquidation) v Sinfield [2018] EWHC 51 (QB) [2018] PIQR P8) failed. However, the Honourable Judge dismissed the personal injury element of the claim on the basis the Claimant had failed to prove causation. This impacted the Claimant’s special damages claim for loss of earnings (it was dismissed in full) and therefore the Claimant only succeeded in recovering the pre-accident value of the vehicle and loss of use.
The special damages claim was below £10,000.00. In the premises, whilst claimant counsel submitted for fast-track trial fixed costs, this was opposed by our Mr Webb. In the case of Conlon v Royal Sun Alliance and Insurance plc [2015] EWCA Civ 92, the court of appeal confirmed that a claim could be retrospectively re-allocated where there is good reason. In the instant case, the Honourable Judge agreed to retrospectively reallocate the case to the small claims track as had the Claimant taken stock of his personal injury claim before issue, he would have realised it was weak and speculative. Costs were limited to small claims fixed costs.