FUNDAMENTAL DISHONESTY FINDING SET ASIDE ON APPEAL

The judgment of His Honour Judge Hodge QC in Meadows -v- La Tasca Restaurants Limited [2016]EW Misc B28 (CC) (16 June 2016)  is now available on Bailli.  It contains some important observations about findings of fundamental dishonesty.

“In my judgment, the inconsistencies and curiosities highlighted by the judge did not entitle him to go further and to find that the claim had been fabricated, and thus was “”fundamentally dishonest””.

KEY POINTS

  • A finding that the claimant’s case had inconsistencies and she had not proven her case did not amount to a finding that the claimant was fundamentally dishonest.
  • The judge should not have made a finding of fundamental dishonesty on the basis of the evidence in the case.
  • The finding of fundamental dishonesty was set aside and the defendant ordered to pay the costs of the appeal.

THE CASE

The claimant brought an action for personal injury stating she slipped when leaving the defendant’s restaurant.  The District Judge rejected the claim

The District Judge did not accept that the claimant had established her case. Further he stated that the defendant had an adequate system in place.

“”I am not satisfied that Miss Meadows slipped while she was leaving La Tasca restaurant on 14 January 2014, and on that basis I must dismiss the claim. The reason that I have reached that conclusion is because to accept that Miss Meadows fell in the way that she claims would have me believe what Miss Meadows and Mrs McGrath told me in their evidence. Their evidence is so riddled with inconsistencies, both internally and in relation to the inconsistencies between the evidence of Miss Meadows and Mrs McGrath, which, when I test that evidence against objective contemporaneous evidence, has led me to conclude that I cannot rely on anything that they tell me in relation to the circumstances giving rise to the claim.””

THE APPLICATION FOR A FINDING OF FUNDAMENTAL DISHONESTY

The defendant sought a finding of fundamental dishonesty. The District Judge found that there was many inconsistencies in the claimant’s case. The defendant had not pleaded fraud, nor put any positive case in relation to dishonesty.  The District Judge found that the case satisfied the fundamental dishonesty test. 

THE DECISION OF THE CIRCUIT JUDGE

The Circuit Judge reviewed the arguments put forward by the parties.

  1. Those were the submissions. Although not referred to in the oral submissions, or in the written skeleton argument, amongst the authorities put before the court is the recent decision of the Court of Appeal in the case of Rizan v Hayes [2016] EWCA Civ 481 (on appeal from His Honour Judge Charles Harris QC, sitting in the county court at Oxford). That case is different from this, in that there there had been an express pleading by the defendant that either the alleged accident had been staged, and that the other driver had been complicit, or that a driver had brought his vehicle to a halt in the path of another one without reason, and intending to cause an accident. The trial judge had concluded (at paragraph 13 of his judgment) that the case was one in which he could not possibly be satisfied that the account given by the claimant was a satisfactory account; and, in those circumstances, the claim had failed. At the conclusion of his judgment, as recorded at paragraph 25 of the judgment on appeal of Tomlinson LJ, an exchange between counsel and the judge had been recorded, in which the judge had said this:
“”Do you want me to say whether or not I find positively that there is fraud here? I think more likely than not. Whether I am satisfied on the criminal burden of proof is perhaps more material since it is akin to a criminal burden of proof. A very high standard of proof is needed in civil proceedings in order to establish fraud. If it were necessary to do so, which it isn’’t, I would find that this was a fraudulent claim.””
He then went on to address the costs position. That finding of fraud was addressed at paragraphs 32 in the only reasoned judgment of Tomlinson LJ, with which the other members of the court (Rafferty LJ and Briggs LJ), both simply agreed. Tomlinson LJ ventured the opinion that Judge Harris had been unwise to express a view on the question whether the claim had been fraudulent, and doubly unwise to do so without giving reasons for his conclusion over and above those which he had already given for his dismissal of the claim. Tomlinson LJ said that the judge would have been better advised to have cleaved to his initial correct view that as the claimants had failed to satisfy the burden of proof on them concerning the occurrence of the alleged accident, it was unnecessary to address the question of fraud. It was said to have been apparent that the judge would not have expressed a view on the point had he not anticipated that that was precisely what counsel was about to ask him to do. But he would, in Tomlinson LJ’’s view, have been better advised simply to point out, as of course he had, that resolution of that question was unnecessary, and to have left it at that.
  1. In the present case, of course, District Judge Khan did have to express a view on the question of whether the claim was fundamentally dishonest because he had been invited to do so by Mr East. So the district judge cannot be criticised here for going on to deliver his second judgment. Moreover, in his second judgment the district judge did supply additional reasons for his conclusion that the claim was fundamentally dishonest, over and above those which he had already given in his first extemporary judgment for his dismissal of the claim. However, Tomlinson LJ went on (at paragraph 33) to point out that one particular problem about the judge’’s conclusion was that he had not spelt out whether he regarded all three actors, the two claimants and Mr Hayes (the driver of one of the cars), as implicated in the fraud. The insurers had put forward two alternatives: one, that the accident had been staged and that the driver of the car had been complicit; the other that the first claimant had deliberately brought the vehicle to a halt in the path of an Astra without reason, intending to cause an accident. In the present case, that criticism cannot be levelled at the door of District Judge Khan. It is clear, or at least sufficiently implicit, in the second judgment that the district judge had concluded that the fundamental dishonesty lay in the claimant and her supporting witness getting together to concoct an entirely false account of an accident that had never taken place at all. At paragraph 34 Tomlinson LJ said that Judge Harris had plainly had in mind the guidance given in cases such as Re H and Others (Minors) [1996] AC 563 by Lord Nicholls of Birkenhead to the effect that: “”When assessing the probabilities the court will have in mind as a factor…that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…””. At paragraph 35 Tomlinson LJ said that what the judge had not done was to enunciate his reasons for his conclusion that a fraudulent scheme, such as one or other of those proposed by the second defendant insurers, had occurred. He had not, at any rate overtly, asked himself whether there were any inherent improbabilities in that conclusion which needed to be overcome or explained, such as the good character of the actors involved, their different ethnic, cultural and linguistic backgrounds, the recent acquisition of the BMW and its use for chauffeuring or taxi services, and the potentially modest size of any award for whiplash injury – all of which might, at first blush, tell against a fraudulent conspiracy, or against one involving all three actors.
  2. Many of those observations are specific to the facts of the case before the Court of Appeal; but it is fair to observe that in the present case District Judge Khan never expressly addressed the inherent probabilities in the claimant getting together with a long-standing friend, Mrs McGrath, to concoct a false account of an accident at a restaurant at the Trafford Centre in support of a claim for personal injuries limited to no more than £10,000. There was nothing to suggest that either the claimant or her witness were other than thoroughly honest individuals who had never engaged in this sort of behaviour before. At paragraph 36 Tomlinson LJ said that, for the reasons he had set out, he would set aside Judge Harris’’s finding that, had it been necessary so to decide, the claim was fraudulent. He went on to record that, on being informed, at the conclusion of counsel for the appellant’’s argument, that the court was minded to take that course, whilst nonetheless upholding the judge’’s dismissal of the claim, counsel for the respondent had very pragmatically not sought to support the judge’’s contingent finding. Later in the course of his judgment, Tomlinson LJ (at paragraph 38) cited an observation of Lord Mance in another case to the effect that there are cases where, as a matter of justice and policy, a court should say that the evidence adduced, whatever its type, is too weak to prove anything to an appropriate standard, and so the claim should fail.
  3. In my judgment, for the reasons that have been advanced by Mr Rana, I am satisfied that District Judge Khan went too far, on the basis of the evidence before him, in concluding, not simply that the accident had not taken place as alleged by the claimant and her witness, but that no accident had taken place at all, and that the claim was a fabrication on the part of the claimant and her supporting witness. In my judgment, the district judge was perfectly entitled to say that the evidence adduced by the claimant and her supporting witness was too weak to prove the claimant’’s case to an appropriate standard, and that the claim should therefore fail. District Judge Khan gave reasons for regarding the evidence before him as unreliable, and I would certainly not be justified in interfering with his conclusion that the claimant had not made out her case. But, in my judgment, and recognising that this does involve a challenge to the district judge’’s findings of fact, with which an appeal court should interfere only with considerable reluctance, in my judgment, District Judge Khan’’s conclusion that the claim was fundamentally dishonest falls well outside the ambit of reasonable judicial decision-making. In my judgment, for the reasons that Mr Rana has advanced, it was not appropriate for the district judge to find that the accident had not happened in the circumstances described. He should have limited his decision, as he did in his first extemporary judgment, to a decision simply that the claimant had not made out her case on the evidence before him. In my judgment, the inconsistencies and curiosities highlighted by the judge did not entitle him to go further and to find that the claim had been fabricated, and thus was “”fundamentally dishonest””.
  4. I therefore allow the appeal on the first of the grounds put forward by the appellant. Had I taken a different view on that ground, I would have dismissed the second ground of challenge to the district judge’’s decision. In my judgment, had the district judge been entitled to make the finding of fundamental dishonesty that he did, then the appeal court could not properly have interfered with the exercise of his discretion to disapply the one-way costs shifting provisions in CPR 44 Part II. Whilst the decision reached by District Judge Khan, on the assumption that there was fundamental dishonesty, is not necessarily one that this court would have reached, it seems to me that it is a decision that was entirely open to the district judge in the exercise of his discretion. Certainly it did not involve any appealable failure properly to exercise the district judge’’s discretion. This is not a case in which it can be said that the district judge had erred in principle in his approach. He did not leave out account some feature that he should have taken into account. He did not take into account some feature that he should not have considered. It cannot be said that his decision was wholly wrong because he failed properly to balance the various factors and weigh them fairly in the scale. The district judge expressly adverted to the failures to plead fundamental dishonesty, and to put that to the claimant and her supporting witness in the course of cross-examination. The weight to be attached to those factors was a matter for the district judge, and not for the appeal court. So had the district judge been right to find fundamental dishonesty, this court would not have interfered with the exercise of his discretion. However, I am satisfied, for the reasons that I have given, that the district judge was wrong to find fundamental dishonesty on the part of the claimant in the pursuit of this claim and, therefore, the appeal must be allowed.

THE COSTS OF THE APPEAL

  1. Having delivered my substantive judgment on the appeal itself, I now inevitably have to address the issue of costs.
  2. Although this is a personal injury claim, the appeal itself related solely to the costs awarded in the court below. Therefore, it seems to me that the normal rule as to costs – that unless the court makes some other order they should follow the event – applies. The appellant has been the successful party. Although it was unsuccessful on the second ground of appeal, that did not add anything to the costs of the appeal itself; and, therefore, in my judgment, and in the exercise of the court’’s discretion, the court should order the unsuccessful respondent to pay the appellant’’s costs of the appeal.
  3. Turning to the quantification of those costs, it is appropriate to undertake a summary assessment, which inevitably involves a broad-brush approach. I am concerned that the hourly rates claimed are in excess of the guideline hourly rates. I am also concerned by the fact that a very large number of hours has been spent in connection with this appeal, and that the total sum claimed of £19,295.20 is over 2½ times the amount in issue on this appeal. I am also troubled by the fact that solicitors attended in the person of a fee-earner charging £310 an hour when counsel is conducting the case.
  4. As against that, it is, however, appropriate to bear in mind that there were issues transcending the actual money value of this appeal, in that the appeal was directed to, and has successfully expunged, a finding of fundamental dishonesty on the part of the claimant in bringing this claim. That is a factor that is clearly relevant to the proportionality of the expenditure of costs in this case.
  5. Bearing all of those considerations in mind, and bearing also in mind that this is a summary assessment, it seems to me that there should be some reduction in the level of costs, but nowhere near as much as the £14,000 or so reduction for which Mr East effectively contended. In my judgment, the reasonable and proportionate amount at which to assess the costs of this appeal should be £12,500. So I will summarily assess the costs of the appeal in that amount.

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5 comments

  1. Are the Claimant’s appeal costs protected from offset? I imagine they are as the appeal would be considered separate proceedings and the costs of the action were awarded to the Defendant in the original action.

  2. That is a very interesting question. QOCS can continue to apply to appeal https://civillitigationbrief.wordpress.com/2016/05/26/qocs-continue-to-apply-on-appeal-high-court-decision/ but I am not sure whether they would apply where a claimant was appealing in relation to a fundamental dishonesty finding and the judge upheld the original finding.

  3. I appreciate that the Defendant may only enforce without permission to the extent of recovered damages (in this case £nil) but I imagine they would feel particularly sore having an unenforceable costs order and in addition, being required to satisfy appeal costs with no right of offset. Ordinarily CPR r 44.12 would apply, but can it where QOCS are engaged?

  4. I’ve posed the same question to Kerry; I think its a clear tension in the rules but fortunately I don’t think the scenario will arise very often.

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