Roberts v Kesson & Anor

Under section 57 of the Criminal Justice and Courts Act 2015, the court must determine whether the claimant has been fundamentally dishonest in relation to the primary or a related claim. The relevant question is whether the dishonesty is fundamental, not whether it was maintained throughout the proceedings. The assessment is holistic. It considers the claim as a whole and the saliency and importance of the dishonest component. An appellate court may conduct a rehearing where the evidence permits only one conclusion on the relevant fact. If more than one conclusion remains reasonably open, the proper course is a retrial.

The claimant succeeded before Mr Recorder Kelbrick in a road traffic accident claim and was awarded £4,400. The insurers appealed, contending that the Recorder had failed properly to determine their application under section 57 of the Criminal Justice and Courts Act 2015. The claim included a dishonest claim for the pre-accident value of the vehicle, storage charges and hire charges.

The appeal concerned whether the Recorder’s reasons adequately addressed fundamental dishonesty, whether the High Court could determine the issue on rehearing, and whether the dishonesty was fundamental for section 57 purposes.

1. Appeal allowed. The Recorder’s reasons were inadequate because fundamental dishonesty was central to the insurers’ case but was not addressed systematically under section 57. His finding that the claimant had not persisted in dishonesty did not answer the statutory question.
2. The appellate court could review the judgment together with the evidence and submissions to determine whether the Recorder’s reasoning was apparent and valid. This followed the approach in Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, as discussed in Haider v DSM Demolition Ltd [2019] EWHC 2712 (QB).
3. A rehearing should be undertaken only where the appellate court is driven to conclude that there is only one answer to the fact in issue. If reasonable alternative conclusions remain, the proper course is a retrial. The hire-charge issue therefore could not be resolved finally on appeal, because deliberate suppression of documents was a possible but not the only inference.
4. On the vehicle-value claim, the only permissible conclusion was that the claimant had been fundamentally dishonest. His first witness statement and schedule of loss advanced a false account concerning disposal of the vehicle and the salvage proceeds. The statutory test was not persistence in dishonesty.
5. Fundamental dishonesty requires dishonesty going to the root or a substantial and important part of the claim. Applying the holistic assessment described in Howlett v Davies & Anor [2017] EWCA Civ 1696 and London Organising Committee of the Olympic and Paralympic Games (in liquidation) v Haydn Sinfield [2018] EWHC 51 (QB), the dishonest £10,400 claim was significant and substantial in the context of the claim as a whole.
6. The Recorder should have found fundamental dishonesty in relation to that claim. Judgment was accordingly given for the insurers, with consequential orders left for further consideration.

• High Court (Queen’s Bench Division): allowed the insurers’ appeal against the order of Mr Recorder Kelbrick dated 27 August 2019. The Recorder had awarded the claimant £4,400 plus interest and costs.