Patel v Arriva Midlands Ltd & Anor

Under section 57 of the Criminal Justice and Courts Act 2015, a fundamental-dishonesty application may be determined after entitlement to damages is established but before full quantification. The court must consider whether further evidence or investigation could materially affect the issues requiring decision. If fundamental dishonesty is proved on the balance of probabilities, the primary claim must be dismissed unless dismissal would cause substantial injustice. The court must then record the damages attributable to the honest part of the claim. A claimant’s presentation and failure to correct a materially false account may establish dishonesty. The dishonesty is fundamental where it substantially affects the presentation of the claim and potentially adversely affects the defendant significantly in the context of the litigation.

The defendants applied under section 57 of the Criminal Justice and Courts Act 2015 to dismiss a personal injury claim arising from a collision between the claimant and a bus. Liability had previously been established, subject to 40% contributory negligence, but the claim remained unquantified.

The claimant alleged severe conversion disorder and substantial disability. Surveillance evidence showed him walking, speaking, travelling independently and engaging normally. The issue was whether the application could fairly be decided before a quantum trial and, if so, whether the claimant had been fundamentally dishonest and would suffer substantial injustice if the claim were dismissed.

1. Timing of the application. The application could be determined once the claimant’s entitlement to damages had been established. Section 57 did not require the court first to quantify the whole claim. Quantification under section 57(4) followed a finding of fundamental dishonesty, a decision on substantial injustice and an order dismissing the claim. The court nevertheless had to consider whether fuller investigation might add to or alter the evidence relevant to the issues before it.
2. Evidence and expert investigation. The court was entitled to determine the application on the written evidence at a hearing other than trial. Further expert evidence was unnecessary. The existing experts agreed that consistency was a hallmark of conversion disorder, while the surveillance evidence was wholly inconsistent with the presentation given to them.
3. Dishonesty. Applying the test in Ivey v Genting Casinos Limited (t/a Crockfords Club) [2017] 3 W.L.R 1212, the court first determined the claimant’s actual knowledge and belief and then applied the objective standards of ordinary decent people. The claimant and his litigation friend had presented an egregiously false account of his disabilities to the experts. The claimant’s failure to correct that account also supported the finding of dishonesty.
4. Fundamental dishonesty and substantial injustice. The dishonesty substantially affected the presentation of the claim and potentially adversely affected the defendants significantly. It concerned the central pleaded diagnosis and the bulk of the claim. Dismissal of the whole claim would not cause substantial injustice. The detriment allegedly suffered by the claimant’s son did not constitute substantial injustice to the claimant.
5. Honest part and order. The whole claim was dismissed. Because the schedule of loss was unparticularised, the court could assess only general damages for the honest part of the claim and awarded £5,750, which it recorded pursuant to section 57(4).

The judgment records that a Deputy High Court Judge had previously found the defendants liable, subject to 40% contributory negligence, and adjourned costs pending determination of the section 57 application. The present court dismissed the claim under section 57.