Smith v London Borough of Haringey

Under section 57 of the Criminal Justice and Courts Act 2015, a claim for personal-injury damages must be dismissed where the claimant is entitled to damages but has been fundamentally dishonest in relation to the primary or a related claim, unless dismissal would cause substantial injustice.

Fundamental dishonesty requires dishonesty which substantially affects the presentation of the claim, judged in the context of the litigation. Dishonesty is assessed using the two-stage approach in Ivey v Genting Casinos Limited. Substantial injustice requires more than the loss of otherwise honest damages. Deliberate exaggeration of disability and loss of earnings may justify dismissal of the entire claim.

The claimant sought damages arising from an assault by a service user at work in April 2014. Liability had been agreed at 75 per cent, leaving the court to assess damages.

The claimant advanced a substantial claim for chronic back pain, psychiatric injury and loss of earnings. The defendant contended that the claim had been fundamentally dishonestly presented and applied under section 57 of the Criminal Justice and Courts Act 2015 for dismissal of the claim.

The central issues were the extent of the accident-related injury, whether the claimant had deliberately exaggerated her disability and loss, and whether dismissal would cause substantial injustice.

1. Assessment of damages. The court accepted the defendant’s orthopaedic and psychiatric evidence. The accident caused self-limiting soft-tissue injuries to the lumbar spine and wrist, resolving within approximately three months. The claimant was awarded £3,450 before the agreed 25 per cent reduction, with no award for continuing pain or loss of earnings.
2. Fundamental dishonesty. Applying London Organising Committee of the Olympic and Paralympic Games v Sinfield [2018] EWHC 51 (QB), the court treated fundamental dishonesty as dishonesty which substantially affected the presentation of the primary or a related claim, in a way which potentially affected the defendant significantly in the context of the litigation. The claimant had deliberately misrepresented her pre-accident back history and functional limitations. Her accounts were contradicted by medical records, expert evidence and surveillance footage.
3. Applying Ivey v Genting Casinos Limited [2017] UKSC 67, the court first determined the claimant’s actual knowledge and belief, then assessed whether her conduct was dishonest by the standards of ordinary decent people. Her deliberate exaggeration was dishonest and fundamentally related to the claim for loss of earnings.
4. Substantial injustice. Section 57 required dismissal unless the claimant would suffer substantial injustice. Following Sinfield, loss of honest damages alone was insufficient. The provision was intended to be punitive and deterrent. The claimant’s financial difficulties did not establish substantial injustice, particularly given the expense and difficulty caused to the defendant by the exaggerated claim.
5. The claim was dismissed pursuant to section 57.

Not stated in the judgment.