Andrew Jenkinson v Gary Robertson

For a finding of fundamental dishonesty under section 57 of the Criminal Justice and Courts Act 2015, the defendant must prove, on the balance of probabilities, dishonesty that goes to the heart of the primary or a related claim and substantially affects its presentation in a way that potentially causes the defendant significant adverse effect.

The claimant must receive adequate warning of the specific basis of the allegation and a proper opportunity to respond. A general reference to exaggeration, unreasonableness or a possible section 57 application will not ordinarily suffice, particularly where the claimant acts in person.

The claimant appealed against a judgment dismissing his personal injury claim under section 57(2) of the Criminal Justice and Courts Act 2015 after a finding of fundamental dishonesty. Liability for the road accident was admitted, but causation and quantum were disputed. The trial judge rejected the alleged continuing mid-back injury and awarded damages for the accepted injuries before dismissing the claim.

The appeal challenged the adequacy of notice, the burden of proof and the factual findings supporting fundamental dishonesty. The central issues were whether the claimant had been given a fair opportunity to meet the allegation and whether the finding could stand in light of errors concerning the evidence.

1. Appeal allowed in part. Grounds 1 and 3 succeeded. The finding of fundamental dishonesty and the consequential orders were set aside. Ground 2, alleging reversal of the burden of proof, failed.
2. Under section 57 of the Criminal Justice and Courts Act 2015, the burden rests on the defendant. Fundamental dishonesty requires dishonesty relating to the primary or a related claim which goes to its heart or a substantial part and substantially affects the presentation of the claim in a way that potentially adversely affects the defendant significantly. Honesty is assessed using the two-stage approach in Ivey v Genting Casinos.
3. A claimant must receive adequate warning of, and a proper opportunity to address, the possibility and basis of a fundamental-dishonesty finding. The precise requirements depend on the circumstances. A litigant in person is a relevant factor. A vague reference to an exaggerated or unreasonable claim, or to a possible section 57 application, did not identify an allegation that the claimant was dishonest about the onset of symptoms or the particular matters later relied upon.
4. The trial judge’s three reasons were unsustainable. The rent-collection claim had been clarified and abandoned as a distinct payment claim. The withholding of the Young report was based on advice that it was privileged, and the report was disclosed after that argument failed. The alleged tenfold increase in the claim resulted from an error about the pleaded limit and a mistaken chronology.
5. The fundamental-dishonesty finding and the consequential orders were set aside.

• High Court (Administrative Court): Grounds 1 and 3 of the appeal were allowed. The finding of fundamental dishonesty and consequential orders were set aside. Ground 2 failed.