Tripped up

A borough council in the West Midlands recently secured a finding of fundamental dishonesty in a highways tripping case. Matthew Harpin sets out how.

A claimant seeking damages in excess of £80,000 against Walsall Metropolitan Borough Council following a highway tripping accident has had his claim dismissed and attempt to appeal refused. His lies about the extent to which his recovery was affected by his injuries went to the heart of the claim.

The claim

On 7 June 2013, the claimant was running along a footpath in Walsall with his two dogs. He put his foot into a pothole, fell and suffered a significant sprain that left him with a functionally unstable ankle which caused him to suffer subsequent falls and further injuries.

The extent of his ongoing symptoms led to the claimant having an ankle operation in March 2017 that caused him to suffer further financial losses and receive care during his recovery.

He alleged that the council was in breach of its statutory duty to maintain the highway pursuant to Section 41 of the Highways Act 1980. A breach of duty was promptly conceded pre issue subject to factual and medical causation.

Investigations into the claimant’s fundamental dishonesty

Browne Jacobson was instructed to represent the council.

The claimant:

• alleged that he was unable to play rugby
• informed his treating physicians and the medico legal experts that he had been unable to return to cycling, rugby or running until shortly before the trial itself took place
• maintained in his first witness statement that he could not run or undertake his previous sporting activities.

Our investigations uncovered intelligence and evidence that made it clear that the claimant had played rugby and had trained extensively for and participated in triathlons, half marathons and a full marathon. We alleged that under Section 57 of the Criminal Justice and Courts Act 2015, the claimant was fundamentally dishonest and had attempted to maximise the value of his claim.

The judgment - part 1

The case came before HHJ Truman sitting at Birmingham County Court. The claimant freely admitted that he had been dishonest in pursuing his claim but argued that he was not ‘fundamentally dishonest’.

The judge initially put Section 57 to one side and found that:

• the alleged accident did occur and the claimant had been injured as alleged
• the claimant’s subsequent injuries did occur and were as a result of a functionally unstable ankle
• whilst the claimant had intentionally lied to his treating surgeon over the extent of his ongoing ankle symptoms/ankle instability, had he been wholly truthful from the outset, surgery would still have been an appropriate option that would have been offered and taken. The ankle surgery/lengthy course of physiotherapy and claim for loss of earnings that arose following the operation were therefore all found to have been reasonable irrespective of the claimant’s attempts to overplay the extent of his ankle symptoms
• the claimant was entitled to an award of £71,992.24 in damages and interest.

However, HHJ Truman stressed that this was not the end of the story.

The judgment – part 2

HHJ Truman noted that following the accident, the claimant had completed:

• the BRAT Lichfield triathlon
• the Staffordshire Iron Man three times
• the Walsall triathlon
• the Birmingham half marathon
• the Greater Manchester marathon.

She also highlighted that he had played rugby despite telling treating physicians that he was unable to do so whilst his Strava records set out the true extent of his extensive running and cycling.

HHJ Truman considered the contrast between the contents of the claimant’s first witness statement against the proven reality of what he was capable of doing. His witness statement made no mention of his true ability to run competitively. Given the sporting events he had participated in, the judge could not fathom why the claims for care presented in his schedule of special damages were so high, particularly given care was claimed for periods when the claimant was proven to be playing competitive rugby. Even when he served a supplemental witness statement, he failed to come clean and rectify the omissions in his first statement.

The judge concluded that the only logical reason for the claimant’s significant omissions to his treating physicians, the medico legal experts, in his two signed witness statements, in his Part 18 replies and his schedule of special damages was his conscious attempt to inflate the value of his claim for compensation.

Ultimately, HHJ Truman disagreed with claimant’s counsel’s argument that the claimant’s dishonesty did not go to the heart of the claim or his analogy that it was akin to a creeper surrounding a tree rather than the tree itself. She was satisfied that the claimant had sought general and special damages that were more than was justified and that his dishonesty went to the heart of the claim. The claimant had deliberately misled and signed false statements of truth. He was fundamentally dishonest and accordingly the claim was dismissed.

The attempted appeal

The claimant sought permission to appeal on the basis HHJ Truman had misdirected herself on the nature of ‘fundamental dishonesty’. Martin Spencer J noted that the claimant accepted he was dishonest but that he was not fundamentally dishonest.

The attempted appeal was founded on an argument that Julian Knowles J had erred in LOCOG v Sinfield [2018] EWHC Civ 51 (QB) by watering down the test for the purposes of CPR 44.16(1) set out in Howlett v Davies [2017] EWCA Civ 1696. Having following Sinfield, it was argued that HHJ Truman had fallen into error.

Martin Spencer J did not consider the appeal was based on a reasonable argument and refused permission. He highlighted that in Sinfield, Julian Knowles J stated that:

“In my judgment, 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 claim and/or a related claim (as defined in s57(8)), 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, judged in the context of the particular facts and circumstances of the litigation…

By using the formulation ‘substantially affects’ I am intending to convey the same idea as the expressions ‘going to the root’ or ‘going to the heart’ of the claim...”

Martin Spencer J noted that “Going to the root” and “Going to the heart” were expressions used in Meadows v La Tasca Restaurants Ltd (2016) and Rayner v Raymond Brown Group Ltd (2016) (which were both referred to by Julian Knowles J in Sinfield). Both cases related to CPR 44.16(1). Martin Spencer J considered that it was clear that Julian Knowles J was laying down a test for the purposes of s.57 that did not differ materially from the test adopted by the courts for the purposes of CPR 44.16(1).

Accordingly, Martin Spencer J found that HHJ Truman was ‘plainly correct’ in reaching her finding of fundamental dishonesty. Where quantum of damages was the only issue to be decided, the extent of the claimant’s recovery went to the heart of the issue before the court and as such, he agreed that the claimant was fundamentally dishonest.

Impact

The claimant has chosen not to pursue his appeal further. He will receive none of the £71,992.24 he would otherwise have been entitled to and is ordered to pay back interim payments made to him by the council plus interest.

The council are delighted whilst their insurers are ‘chuffed to bits’. This fantastic result demonstrates that courts remain committed to penalising fundamentally dishonest claimants even in instances, as here, where there was clear judicial sympathy with a claimant who had suffered a significant genuine injury.

Matthew Harpin is an Associate at Browne Jacobson. He can be contacted on 0121 237 3970 or This email address is being protected from spambots. You need JavaScript enabled to view it..