Kasem v University College London Hospitals NHS Foundation Trust

A common-law deceit claim must identify the alleged representations, their falsity, the claimant’s knowledge and reliance, and the resulting damage with sufficient particularity. Where dishonesty is inferred from surrounding facts, those primary facts must also be pleaded and must support the inference sought. A pleading cannot rely on vague allegations, unexplained examples, or matters left to emerge through disclosure and witness evidence. Part 36 settlements are governed by their self-contained procedural regime. Questions about withdrawing an admission or amending a pleading are addressed through the court’s procedural powers, rather than by importing common-law affirmation principles.

The Trust alleged that Mr Kasem had fraudulently exaggerated a clinical negligence claim and had thereby induced acceptance of a £75,000 Part 36 offer. It sought damages in deceit and initially pleaded that it did not seek to set aside the settlement.

The County Court struck out the claim as pleaded but permitted amendment. The amended pleading removed the inconsistent relief position but retained substantially the same allegations of fabrication and exaggeration. The High Court appeal concerned whether the deceit claim was sufficiently particularised. Permission was also sought on issues concerning affirmation, amendment and abuse of process.

1. Appeal allowed on the Particularisation Issue. The deceit claim was struck out as pleaded. Permission to appeal on the remaining grounds was refused. Consequential relief was to be considered if not agreed.
2. A claimant in deceit must plead with precision: the representation, whether express or implied; the respects in which it was false; the defendant’s knowledge or recklessness; the intention that it be acted upon; reliance; and resulting damage. A bare assertion of fraud is insufficient.
3. Where dishonesty or intention is to be inferred from other facts, the primary facts supporting the inference must be clearly pleaded. The pleading must identify the case to be met, not merely the evidence likely to be deployed.
4. The Trust’s references to holidays, social activities, lifting a person at a gym, boxing, undisclosed accounts and rent did not explain which representation was false, why it was false, or how the Trust relied on it in making the Part 36 offer. The use of “for example” impermissibly left further allegations unidentified.
5. The suggestion that the fraud case might crystallise through disclosure or witness statements was rejected. A clear and sustainable deceit case must exist when the Particulars of Claim are settled.
6. The authorities concerning fundamental dishonesty in the QOCS regime did not dilute the ordinary pleading requirements for a claim whose cause of action was common-law deceit.
7. Common-law affirmation principles did not apply to the self-contained Part 36 regime. The appropriate analysis concerned withdrawal of an admission and amendment of pleadings, controlled by the court’s procedural powers and by considerations of injustice or prejudice. No relevant prejudice beyond costs was identified.

• High Court (Queen's Bench Division): The appeal from the County Court order dated 28 January 2020 was allowed on Ground 4. The claim was struck out as insufficiently particularised. Permission to appeal on Grounds 1-3 was refused.