Mustard v Flower & Ors

A defendant may seek a finding of fundamental dishonesty under section 57 of the Criminal Justice and Courts Act 2015 without pleading the allegation in a particular form. The safeguards are adequate warning of the possibility of the finding and a proper opportunity to address the issues.

Permission to amend should be refused where a contingent plea of fundamental dishonesty has no real prospect of success, serves no procedural purpose, or causes unfair prejudice. A defendant may nevertheless plead and explore evidence of exaggeration, including whether it was conscious, without pleading fundamental dishonesty.

The claimant brought a personal injury claim arising from a rear-end road traffic accident. Liability was admitted, but the parties disputed the severity of the impact, the existence and consequences of brain injury, the claimant’s pre-accident condition, and the reliability of her presentation.

The third defendant sought permission to amend its Defence to reserve the right to seek dismissal under section 57 of the Criminal Justice and Courts Act 2015 if the claimant was found to have consciously exaggerated her symptoms. The claimant opposed that amendment. The court also determined an application concerning expert use of diffusion tensor imaging.

1. Permission to amend was refused insofar as the amendment reserved a right to seek dismissal for fundamental dishonesty under section 57 of the Criminal Justice and Courts Act 2015. The provision requires no particular form of application, so the amendment served no procedural purpose.
2. The safeguards are adequate warning of the possibility of a finding of fundamental dishonesty and a proper opportunity to respond, including through additional factual or expert evidence where necessary. Dishonesty should not be pleaded on mere suspicion or speculation.
3. The proposed plea had no real prospect of success on the present material and would cause prejudice, including insurance consequences, additional administration and anxiety. It was therefore properly refused under the amendment jurisdiction.
4. Amendments pleading exaggeration or minimisation of symptoms and stating that the issue would be explored at trial were allowed. Such pleading did not amount to a present allegation of fundamental dishonesty and the defendant was entitled to test whether any exaggeration was conscious or unconscious.
5. Where a proper basis exists for a fundamental-dishonesty application, it should ordinarily be set out in a statement of case or written application at the earliest reasonable opportunity. Speculative or contingent pleas should be discouraged.
6. The application concerning neuro-imaging was refused. The earlier order permitted reliance on the imaging but excluded the substance and fruits of analysis derived from an excluded medico-legal report. Supplying that analysis to experts breached the order; the material was excluded and references redacted.

First-instance case management decision in the High Court. Permission for the contingent fundamental-dishonesty amendment was refused, amendments concerning exploration of exaggeration were allowed, and the separate neuro-imaging application was refused.