London Organising Committee of the Olympic And Paralympic Games (LOCOG) v Sinfield

A personal injury claimant is fundamentally dishonest under section 57 of the Criminal Justice and Courts Act 2015 where dishonesty substantially affects the presentation of liability or quantum and could significantly prejudice the defendant, assessed in the context of the litigation.

Once fundamental dishonesty is proved, the court must dismiss the whole claim, including genuine elements, unless dismissal would cause substantial injustice. The loss of honestly recoverable damages is not itself sufficient. Some further substantial injustice caused by that loss is generally required.

The claimant suffered personal injury while volunteering at the London Olympic and Paralympic Games. Liability was admitted. His schedules claimed substantial past and future gardening expenses on the basis that the accident had necessitated employing a gardener.

The County Court found that the claimant had dishonestly created invoices and made a dishonest witness statement, but held that the dishonesty was confined to the gardening claim. It awarded damages and found alternatively that dismissal would cause substantial injustice.

The defendant appealed. The issues were whether the original schedule was dishonest, whether the claimant had been fundamentally dishonest within section 57 of the Criminal Justice and Courts Act 2015, and whether dismissal would cause substantial injustice.

1. Appeal allowed. The County Court order was set aside and the personal injury claim was dismissed under section 57(2) of the Criminal Justice and Courts Act 2015.

2. A claimant is fundamentally dishonest under section 57(1)(b) where the defendant proves, on the balance of probabilities, that the claimant acted dishonestly concerning the primary or a related claim and thereby substantially affected the presentation of liability or quantum. The conduct must potentially affect the defendant adversely in a significant way, judged in the context of the particular litigation. This formulation conveys the same essential idea as dishonesty going to the root or heart of the claim.

3. Dishonesty is determined under the test in Ivey v Genting Casinos Ltd [2017] 3 WLR 1212. The court first determines the claimant's actual knowledge or belief about the facts. It then applies the objective standards of ordinary decent people. The claimant need not appreciate that the conduct would be regarded as dishonest by those standards.

4. The schedules could reasonably mean only that the claimant and his wife had done all the gardening before the accident and that the accident necessitated employing a gardener for the first time. The claimant knew that account was false. The Recorder was plainly wrong to treat it as a muddle rather than a dishonest misrepresentation.

5. In any event, the dishonestly created invoices and dishonest witness statement were sufficient to establish fundamental dishonesty. They supported the largest head of special damage, were premeditated and were maintained for months. The gardening claim exceeded £14,000 and could have caused the defendant to pay substantially more than was recoverable on honest evidence. The subsequent reduction of that claim did not remove its potential adverse effect.

6. On a section 57 application, the court first determines whether the claimant is entitled to damages. If so, it determines whether fundamental dishonesty is proved. If it is, section 57(3) requires dismissal of the whole claim, including honest elements, unless section 57(2) substantial injustice is established.

7. Substantial injustice requires more than the loss of damages attributable to genuine heads of claim. Such loss is the intended punitive and deterrent consequence of section 57(3). The Recorder identified no additional injustice capable of satisfying the exception and wrongly characterised the gardening claim as peripheral.

1. High Court, Queen's Bench Division: The appeal was allowed. The County Court order was set aside and the claim was dismissed under section 57(2) of the Criminal Justice and Courts Act 2015.

2. Oxford County Court: Mr Recorder Widdup awarded the claimant £27,758.79 including interest. He found dishonesty concerning the gardening evidence but held that the claimant had not been fundamentally dishonest in relation to the whole claim. He found alternatively that dismissal would cause substantial injustice.