Pinkus v Direct Line

In a personal injury claim, a court may find fundamental dishonesty where the claimant deliberately exaggerates or fabricates symptoms so as to substantially affect the presentation of the claim, including its valuation and alleged incapacity. The issue is determined on the balance of probabilities. Under Criminal Justice and Courts Act 2015, section 57, the primary claim must then be dismissed unless dismissal would cause substantial injustice, including where part of the claim is otherwise genuine. A dishonesty allegation need not necessarily be fully pleaded at the outset if the claimant has had fair and sufficient notice of the case and a proper opportunity to answer it.

The claimant sought damages following a road traffic accident for which liability was admitted. He alleged minor physical injuries, post-traumatic stress disorder with dissociative symptoms, substantial psychiatric disability, loss of employment and future losses approaching £850,000.

The defendant contended that the accident caused only minor physical injury and short-lived travel anxiety or adjustment disorder. It alleged that the claimant had fabricated or exaggerated his symptoms and relied on fundamental dishonesty under section 57 of the Criminal Justice and Courts Act 2015.

The court determined causation, diagnosis, employment loss, credibility, quantum and whether the statutory consequences of fundamental dishonesty applied.

1. Fair notice of dishonesty case. The defendant was entitled to raise conscious exaggeration, fabrication, malingering and fundamental dishonesty. Although the allegation had not been fully particularised in the original defence, the claimant knew that credibility, causation and quantum were disputed, knew the substance of the later allegations, and had a proper opportunity to respond. The court would not permit genuinely new matters causing unfair prejudice.
2. Merits. The accident caused minor physical injuries and a short-lived travel anxiety or adjustment disorder, with mild depression, resolving by about March 2013. The claimant did not prove PTSD, dissociative amnesia, traumatic brain injury or any continuing accident-related disorder. His contract ended naturally, and his failure to return to work was not caused by the accident.
3. Dishonesty. The claimant deliberately exaggerated or fabricated the severity of the accident, his symptoms, memory impairment, functional limitations and employment consequences. The dishonesty substantially affected the presentation of the claim because it went to the heart of the pleaded earnings, care and continuing-disability claims. The approach in LOGOC v Sinfield [2018] EWHC 51 (QB), applying the dishonesty test in Ivey v Genting Casinos Limited (t/a Crockfords Club), was adopted.
4. Statutory consequence. The claim fell within section 57 of the Criminal Justice and Courts Act 2015. The court was not satisfied that dismissal would cause substantial injustice. The entire primary claim was therefore dismissed under section 57(3), although the court recorded that it would otherwise have awarded £4,250 in general damages and £250 for the policy excess if established. The judge was also satisfied to the criminal standard regarding the findings of deliberate exaggeration and dishonesty.