Fundamental Dishonesty: Claimant gets no award for melodramatic performance

A significant claim for personal injury made by a Claimant with links to the film industry was dismissed after a Judge decried his 'performance' in the witness box as "exaggeration and fabrication".

The Claimant's claim in excess of £850,000 was dismissed pursuant to Section 57 of the Criminal Justice and Court Act for fundamental dishonesty. The true value of the genuine claim was valued by the Court at only £4,500.

The Court highlighted a large number of exaggerations and fabrications by the Claimant resulting in a strong rebuke from His Honour Judge Coe that "the obvious explanation for such fabrication is financial gain."

Background

The Claimant advanced a claim of £850,000 for personal injury including substantial claims for future and past loss of earning and care totalling £780,000. The Claimant alleged he suffered from memory loss, became temperamentally volatile and had psychiatric problems as a result of the collision.

Liability for the accident was admitted by the Defendant, the insurer of the other driver. However, throughout the claim, the Defendant denied that the accident occurred as alleged. The use of surveillance also called the Claimant's credibility into question. Although not pleaded in the defence, the counter-schedule pleaded fundamental dishonesty.

Despite efforts by the Claimant's representatives to seek a ruling that the Defendant be disallowed from running such an argument, the Trial proceeded.

Outcome

His Honour Judge Coe dismissed the claim pursuant to Section 57(3), recording the amount of genuine damages that would have been awarded to the Claimant to be £4,500, to be offset against the Defendant's recoverable costs.

Having considered the evidence, the Judge referred to the recent raft of authorities on the issue of fundamental dishonesty, specifically that of LOCOG v Sinfield. The Judge stated that "the question [for him] therefore is whether Mr Pinkus' fabrication and dishonesty 'substantially affects' the presentation of his claim."

The Judge found on that analysis that the Claimant's dishonesty was "close to the heart" of the claim:

• He had exaggerated the nature and severity of the accident
• Mr Pinkus and his wife had exaggerated and fabricated their accounts of their symptoms
• He was dishonest about his pre-accident circumstances and level of amenity
• Mr Pinkus' 'performance' was deemed to be so extreme so as to warrant questions over his mental capacity at that time (initially resulting in Mrs Pinkus being appointed his litigation friend), yet on reflection must have been exaggeration and fabrication
• The alleged severe memory loss was fabricated to such an extreme that "the claimant's doctors were unable to provide a reliable diagnosis";

What can we learn?

• The early admission of liability allowed the judge to find the Defendant's insured driver had no interest in the litigation, and was therefore treated as an independent witness. Such a finding is extremely important in the context of the application of Section 57 within litigation, as these claims are genuine but exaggerated. Therefore, the treatment of a defendant driver as an independent witness in such a circumstance is highly valuable to those defending the claims when that witness evidence relates to possible causation of those claims alleged to be exaggerated.
• As recently seen in the appeal success of Molodi, the Defendant did not plead Section 57 fundamental dishonesty within the Defence. However, it was apparent from the outset that Mr Pinkus's credibility was in issue: whilst liability was admitted the Defendant had denied the accident had occurred as the Claimant said and had disputed causation and quantum. The Claimant was also aware that he had been subject to surveillance.
• This decision emphasises the importance of the judgment in Howlett v Davies & Anor, which held that "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" and "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."