ANDREW JENKINSON v GARY ROBERTSON

For a finding of fundamental dishonesty under Criminal Justice and Courts Act 2015, the defendant bears the burden of proving dishonesty on the balance of probabilities. The dishonesty must go to the heart of the claim, or substantially affect its presentation in a way that potentially causes significant adverse effect to the defendant.

The claimant must receive adequate warning of the allegations and a proper opportunity to respond. A vague reference to an exaggerated or unreasonable claim, or to a possible section 57 application, will not ordinarily suffice where the alleged dishonesty concerns a particular account of symptoms. This requirement is especially important where the claimant is a litigant in person.

The claimant appealed against a judgment dismissing his personal injury claim under section 57 of the Criminal Justice and Courts Act 2015 after the trial judge found him fundamentally dishonest. Liability for the road accident was admitted, but causation and quantum were disputed. The trial judge rejected the claimant’s case concerning continuing thoracic pain and assessed damages for the admitted injuries, but dismissed the entire claim after finding dishonesty in relation to the claimant’s symptoms, a schedule of loss and disclosure of an expert report.

The appeal concerned inadequate notice of the dishonesty allegation, an alleged reversal of the burden of proof, and errors in the matters relied upon by the trial judge.

1. Appeal allowed. The finding of fundamental dishonesty and the consequential orders were set aside. Grounds 1 and 3 succeeded; ground 2 did not.
2. Under section 57 of the Criminal Justice and Courts Act 2015, the burden lies on the defendant to prove fundamental dishonesty on the balance of probabilities. The approach in London Organising Committee of the Olympic and Paralympic Games (in liquidation) v Sinfield [2018] EWHC 51 (QB) was adopted as identifying the necessary substantial effect on the presentation of the claim. Honesty is assessed using the two-stage approach in Ivey v Genting Casinos [2017] UKSC 67.
3. A section 57 allegation need not always be pleaded. The governing question is whether the claimant had adequate warning of the matters relied upon and a proper opportunity to address them, applying Howlett v Davies [2018] 1 WLR 948. For a litigant in person, the court should ordinarily ensure that the allegation is clearly understood and that sufficient time is available to consider it. A claimant should not ordinarily be required to answer a fundamental dishonesty allegation for the first time in closing submissions.
4. The references before trial to an exaggerated or unreasonable claim, and to a possible section 57 application, did not adequately identify an allegation that the claimant was dishonest about the onset of symptoms. The defendant’s refusal to particularise the allegation deprived the claimant of a fair opportunity to respond.
5. The trial judge’s three principal reasons were materially undermined. The schedule of loss had been clarified and amended; the withholding of the radiological report was based on an, albeit unsuccessful, advice-based privilege argument; and the alleged tenfold increase in the claim resulted from factual and chronological errors. Those matters could not establish fundamental dishonesty on the evidence as properly understood. The reasoning in Cojanu v Essex Partnership University NHS Trust [2022] EWHC 197 (QB) was consistent with treating corrected pleading errors as outside the mischief of section 57.

• High Court (Queen’s Bench Division): Appeal from the judgment of HHJ Christopher Dodd. The appeal was allowed on grounds 1 and 3, the finding of fundamental dishonesty and consequential orders were set aside, and ground 2 was dismissed.