London Organising Committee for the Olympic and Paralympic Games (in Liquidation) v Sinfield [2018] EWHC 51 (QB)
On the 22 January 2018 the High Court has provided the guidance on the meaning of “fundamental dishonesty” in the context of personal injury claims through a judgment in which a claimant wrongly claimed for special damages in his otherwise legitimate claim.
The background of this case is that in September 2012 the Claimant was injured whilst volunteering at the 2012 Olympic Games. The Claimant brought Proceedings for personal injury against LOCOG and served a Preliminary Schedule of Damages. The Schedule was verified by the Claimant with a statement of truth. Within this Schedule it was stated that prior to the accident the Claimant had looked after his two acre garden with his wife but, following the accident, they had to employ a gardener. The total value of the claim for gardening was £13,953.31. This represented about 28% of the damages claimed overall. Thereafter, in January 2016, the Claimant served his List of Documents and disclosed the gardening invoices from October 2012 onwards. In September 2016 a further Schedule of Damages was served by the Claimant maintaining (with adjustments due to the date) the claim for past and future gardening losses. However, the Defendant obtained and disclosed a witness statement from the gardener who confirmed that he had been the Claimant’s gardener for many years prior to the Claimant’s accident. The gardener further confirmed that he had never invoiced the Claimant for his gardening services and that the disclosed invoices were not his. In light of this evidence the Defendant served an Amended Defence in which they alleged fundamental dishonesty. In March 2017 the Claimant provided a Supplementary Witness Statement and admitted that his first statement was badly worded since, whilst he had employed a gardener before the accident, he did so out of choice whereas post-accident that choice had been removed and he had to employ the gardener. The Claimant also admitted creating the gardener’s “invoices” himself, but stated that he was only trying to show what he had paid to the gardener.
At first instance, in August 2017 Mr Recorder Widdup at Oxford County Court ruled that the Claimant did have an element of a genuine gardening claim but its presentation was “muddled, confused and careless”, however it did not “contaminate” the entire claim. The judge said he needed “evidence of weight” before he could find fundamental dishonesty. He found that the Claimant did not set out to bring a dishonest claim but made a careless error in the initial presentation of part of his case which he later compounded by attempting to conceal it. Damages were awarded in the sum £26,694.66 plus interest of £793.93 and it was ordered the Defendant do pay the Claimant’s costs up to 31 December 2016, and 50% of his costs thereafter.
This decision was overturned and the claim for damages dismissed under section 57 of the 2015 Criminal Justice and Courts Act 2015.
At the High Court Mr Justice Julian Knowles ruled that “a claimant should be found to be fundamentally dishonest within the meaning of s57(1)(b) if the Defendant proves on a balance of probabilities that the Claimant has acted dishonestly in relation to the primary and/or a related claim and that he has thus substantially affected the presentation of his case, either in respects of liability or quantum, in a way which potentially adversely affected the Defendant in a significant way”. He added that the fact that the greater part of the claim may have been genuine was “neither here nor there” where the court finds fundamental dishonesty.
As a result of the finding of fundamental dishonesty the claim, valued over £26,000.00 was dismissed and the Claimant has to pay the Defendant’s costs.
Tanya Bland