Clyde & Co, instructed by the Medical Protection Society, successfully recovers defence costs in full pursuant to CPR 44.16

Claimant to pay £323,500 in Defence costs following allegations of fundamental dishonesty in Claim relating to alleged negligent gastric band surgery.

Background

The Claimant underwent gastric banding surgery under the care of the First Defendant Bariatric surgeon in 2005 in which the band was negligently placed around both the oesophagus and aorta. She went on to suffer an acute bowel injury in 2016. It was the Claimant’s case that the two were causatively linked. This was robustly denied by the First Defendant. A Claim was also brought against an NHS Trust (separately represented) in respect of the care provided to the Claimant in 2016 when she suffered from the acute bowel obstruction.

The Claimant advanced a significant claim for damages totalling £2,595,592 including a substantial claim for future care of £867,331 and aids and equipment of £487,395. The Claimant also pleaded that she was unable to work, and her past and future loss of earnings claim totalled £856,793.  

The Claimant’s post-operative condition lay at the heart of the Claim. The Claimant pleaded that as a result of the alleged negligence she had been left with faecal frequency, urgency and incontinence, chronic diarrhoea and faced significant limitations on her diet and activities as a result of her bowel condition.  She pleaded that she continued to suffer significant fatigue, had reduced mobility and she required substantial care and support with most activities of daily living including cooking, cleaning and maintenance of her home.  She claimed that she was unable to work and had a travel phobia. At examinations by the Defendant’s experts she walked with assistance from her husband and stated that she spent most of her time in bed.  

Evidence of fundamental dishonesty 

Acting on instructions from the Medical Protection Society, social media and open intelligence searches were undertaken. Video surveillance footage was also obtained.  The footage obtained on behalf of the First Defendant demonstrated that the Claimant had exaggerated the extent of her disability in her witness statements, her updated Schedule of Loss and to the medical experts instructed by all parties. 

The most striking piece of evidence was the surveillance footage of the Claimant playing golf on several days. The Claimant was seen demonstrating a golf swing in a car park for some time and swinging a golf club with apparent ease whilst she underwent a golf lesson.  She was seen mobilising in and out of her car without evidence of difficulty, carrying a large golf bag full of clubs.  Further evidence was obtained which confirmed that the Claimant was the chair of a Golf Club and had a handicap of between 22 and 23.  She had played in at least 3 golfing competitions since 2022.

Claim discontinued and permission granted for Trial on the issue of Fundamental Dishonesty 

The Claimant denied the allegations of fundamental dishonesty pleaded within an Amended Defence at the Order of the Court. Both Defendants maintained their defence and pressure on the Claimant in view of disclosure relating to fundamental dishonesty, and just 5 working days before the first day of Trial on the substantive Claim, the Claimant discontinued her Claim against both Defendants. 

The matter came back before the Court with the Master granting the Defendants’ joint Application for an order that the allegations of fundamental dishonesty shall be determined at a further hearing.   The Defendants pursued a finding of fundamental dishonesty in order to disapply Qualified One-Way Costs Shifting pursuant to CPR 44.16 (1). The Defendants relied upon Practice Direction to Part 44 at paragraph 12.4 that (c) where the claimant has served a notice of discontinuance, the court may direct that issues arising out of an allegation that the claim was fundamentally dishonest be determined notwithstanding that the notice has not been set aside pursuant to rule 38.4’. The Defendants submitted that the fundamental dishonesty went to the heart of the Claim (as per Gosling v Hailo) and the Claimant’s dishonesty fell within the formulation so succinctly set out by Julian Knowles J in Sinfield v LOCOG.

Two months before the Trial on the issue of fundamental dishonesty, the Claimant agreed to pay the Defendants’ costs in full totalling £323,500 to avoid the Trial with £100,000 being paid upfront and agreement to charges being placed on properties to secure the further debt.  

Lessons learned

This Claim demonstrates that even where there is a genuine Claim it is important to fully investigate condition and prognosis and identify signs of dishonest behaviour. Intelligence reporting is a helpful starting point and can determine whether obtaining surveillance is worthwhile.

Even on discontinuance of a Claim, the Court can consider whether to direct the determination of Allegations of fundamental dishonesty considering: 

• The stage at which the Claim discontinued;
• The costs incurred by the Defendant(s) in investigating the Claim;
• Whether the evidence discloses a triable issue;
• The overriding objective of dealing with a case justly and at proportionate cost; and 
• The public interest in identifying false claims and claimants who pursue such claims should be required to meet the costs of litigation. 

It is important to undertake an asset search if recovery of costs is the main driver for pressing ahead for a finding of fundamental dishonesty following discontinuance to ensure that clients are not throwing good money after bad.  

The First Defendant thanked Louise Jackson, Partner for working ‘so tirelessly on the case’ and confirmed that he was ‘grateful for all efforts and for us having the benefit of your experience, insight and intelligence in our defence’.

Allison Munro, Claims Manager and Solicitor from Medical Protection Society instructing Clyde and Co states: 
“I am delighted by what our member has described as the ‘good and fair outcome‘ of this hard fought claim. The robust approach taken by MPS was not only in his best interests but also those of the wider MPS membership, since it protected the member fund and clearly demonstrated that we will take every opportunity to deter fraudulent and exaggerated claims”.