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Fundamental Dishonesty by Omission

  • United Kingdom
  • Personal injury claims litigation

15-02-2022

Palmer v Mantras & Liverpool Victoria Insurance Company Ltd [2022] EWHC 90

  • Proving fundamental dishonesty;
  • whether failing to provide detail when answering medical expert’s questions is enough to establish fundamental dishonesty;
  • what can defendants do?

If a defendant can establish that a claimant has been fundamentally dishonest then there is a good chance that the claim will be dismissed in its entirety whatever its other merits. To be successful a defendant must prove that the claimant has been dishonest, by establishing what the claimant knew to be true at the time, and then comparing their conduct to the standard of an ordinary decent person.  A defendant must go on to prove that the dishonesty was fundamental to the claim; the dishonesty needs to go to the heart of the claim.

1.1. Background

The claimant brought a personal injury claim as a result of a road traffic accident on the M25 and liability had been admitted.

The claim was pleaded at over £2.2 million and the hearing lasted 12 days, involved 16 expert witnesses and 17 lay-witnesses. The claimant attended 22 medico-legal examinations in total, over a 5 year period.

The claimant alleged a multitude of injuries, including brain injury, sufficient to derail a promising career in marketing. Whilst the defendant accepted a short-lived whiplash injury, they denied any organic brain injury, or that her ongoing difficulties were attributable to the incident. They pleaded fundamental dishonesty on the basis that the claimant had failed to disclose her true level of function to the medical experts.

1.2. Judgment

It was alleged the claimant initially failed to mention to the medico legal experts her symptoms of impaired balance, she also failed to disclose the full extent of her travelling and was actively withholding her true level of functioning.

It was held that the impaired balance was not an essential concern at the stage of the first report. The claimant’s omissions were not found to be dishonest as she had never claimed to be bed bound and so her ability to travel was not a focus of the experts, and therefore was unlikely questioned by them on this. Although the claimant was found to be clearly articulate, intelligent and straightforward, she had chosen to respond by answering questions from the medical legal experts which the judge considered to be reasonable and not deceitful in any way.

There were other disparities in her witness statements but some were put down to her brittle memory and other were considered less important when considered in full context.

The judge found the claimant to be an honest and dignified witness. He acknowledged there were differences in her evidence, but by nature, the claimant was not the kind of person who would volunteer information over and above what was asked of her; she was considered a reserved person. Significantly, this was an allegation of fundamental dishonesty mostly by omission and the judge found this to be an unfair approach.

Another notable issue with this case was the judge’s comments on the medical evidence. Two of the experts for the defence were found to have disbelieved the claimant from the outset. They produced reports that were extremely critical of the claimant and damning of her claim. The reports looked good (from a defendant insurer’s point of view) but in the witness box the experts were so set against the claimant that the judge simply did not accept their evidence at all – preferring that of the claimant’s experts. They were found to lack balance and to have departed from their CPR duties.

Ultimately the Claimant was awarded over £1.6m.

1.3. Conclusion

Fundamental dishonesty is a hard defence to establish and deciding on whether to plead it is rarely clear cut.

As a defendant it is often difficult to assess a claimant’s credibility without having ever met or spoken to them directly; of course the impression the claimant makes on the judge cannot be anticipated ahead of the oral evidence they give at trial and it is the impression they create at trial which is likely to be central in the judge’s assessment as to whether they have been fundamentally dishonest or not.

The absence of hard evidence is likely to be fatal to the allegation. In this particular case the claimant appeared to answer the experts’ questions reasonably honestly, however her failure was not providing fuller or more detailed information, which was not specifically asked of her; this failure was not enough to establish fundamental dishonesty.  This “dishonesty by omission” is to be contrasted with a claimant who provides information that they know to be incorrect.

Care needs to be taken when instructing experts if fundamental dishonesty is a potential issue – if you want them to ask specific questions of the claimant it may be as well to specify those in the instructions given.

The Judge’s comments on the medical evidence remind us that a very robust report, which may look great on paper, may not be so convincing under cross examination if it is so tilted against the claimant that it appears the expert has lost sight of his duty of impartiality. The risk is that the court will simply not find an extreme report credible.

The key takeaways are:-

  1. if fundamental dishonesty is suspected at the time of instruction, identify specific and detailed questions that you want the expert to put to the claimant;
  2. omission to provide information may well not be enough to establish fundamental dishonesty. If you suspect that the claimant is deliberately omitting information – pin them down – try Part 18 questions;
  3. ensure medical experts have complied with all CPR duties- do not let them become an advocate for your case.

For further advice or guidance on cases with suspected dishonesty or exaggeration, please contact our corporate claims team.

Full details of the case can be found in the full Judgment; Link.