Attique Denzil v Usman Mohammed & Anor

For the purposes of section 57 of the Courts and Legal Services Act 2015, proof of dishonesty does not by itself establish fundamental dishonesty. The dishonesty must be fundamental in relation to the primary or related claim. The statutory word should be applied according to its ordinary meaning, with expressions such as going to the root or heart of the claim used only as aids. The assessment is fact-sensitive and holistic. A minor, short-lived injury mentioned only in evidence, and not pleaded or relied upon as a head of claim, will not ordinarily substantially affect the presentation of the claim or potentially prejudice the defendant significantly. Adequate reasons must be given for a finding of fundamental dishonesty.

The claimant appealed against an order of His Honour Judge Khan dated 17 January 2022 in proceedings arising from a road traffic accident. The county court accepted that an accident had occurred, but found that the claimant had not proved his alleged neck and shoulder injuries and had dishonestly invented a head injury involving swelling lasting three to four days.

The judge dismissed the primary claim under section 57 of the Courts and Legal Services Act 2015, stating that the dishonesty was fundamental. The claimant did not challenge the finding of dishonesty itself. The appeal concerned whether the dishonesty relating to the unpleaded head injury was fundamental to the claim and whether adequate reasons had been given.

Appeal allowed. The finding of fundamental dishonesty was set aside and the claim was no longer dismissed.

1. The statutory requirement under section 57 is distinct from proof of dishonesty. The defendant must establish, on the balance of probabilities, that the dishonesty was fundamental in relation to the primary or related claim.
2. Whether dishonesty is fundamental is an evaluative question of fact and degree. The statutory word should retain its ordinary meaning. The expressions going to the root or heart of the claim, and substantial effect on the presentation of the case with significant potential adverse impact on the defendant, may assist but must not replace the statutory language.
3. The assessment should be holistic. The court may consider the nature of the claim, liability, quantum, the component parts of the claim and the potential effect of the dishonesty on recovery. The value of the dishonest element is relevant, although it is not automatically decisive.
4. The first-instance judge gave inadequate reasons. The statement that fundamental dishonesty was axiomatic, followed by a general reference to the dishonesty going to the root of the claim, did not explain how an injury which was not pleaded, included in the CNF or medical report, or relied upon as a head of claim could be fundamental.
5. The alleged head injury was minor and short-lived. It did not substantially affect the presentation of the claim in relation to liability or quantum, nor potentially adversely affect the defendant in a significant way. The seriousness of making up evidence could potentially be addressed through costs under the CPR, but it did not satisfy section 57.

The court recognised the considerable weight ordinarily due to a trial judge’s evaluative assessment, particularly where the judge had seen the witnesses. This case nevertheless disclosed an identifiable error in the treatment of the statutory question.

• High Court (King's Bench Division): appeal from an order of His Honour Judge Khan at Burnley County Court dated 17 January 2022. The appeal was allowed and the claim was no longer dismissed.