Qaisar Mehmood v Harry Mayor

An interim payment cannot be ordered where a live plea of fundamental dishonesty means that the defendant has not admitted liability to pay damages, or where the court cannot be satisfied that the claimant would obtain judgment for a substantial sum. Where the possible outcome ranges from dismissal of the claim to recovery of the full sum sought, the court cannot identify a reasonable proportion of the likely final judgment. The issue of fundamental dishonesty, involving disputed expert and factual evidence, ordinarily requires determination at trial and cannot be resolved summarily on documents alone. The same considerations prevent retrospective approval of an earlier interim payment.

The claimant sought retrospective approval of a £10,000 interim payment and a further £75,000 payment in a personal injury claim arising from a road accident. Primary liability was admitted, but the defendant disputed contributory negligence, causation and quantum and pleaded fundamental dishonesty under Criminal Justice and Courts Act 2015, section 57, seeking dismissal of the claim.

The defendant argued that the conditions in Civil Procedure Rules 1998, rule 25.7 were not satisfied. The claimant relied on medical evidence supporting rehabilitation and treatment, while the defendant relied on surveillance evidence and expert opinions suggesting exaggeration and dishonesty. The central issue was whether an interim payment could be ordered while the fundamental-dishonesty allegation remained unresolved.

1. The application for a further interim payment was dismissed. Retrospective approval of the earlier £10,000 payment was also refused.

2. Under Civil Procedure Rules 1998, rule 25.7(1)(a), an interim payment requires the defendant to have admitted liability to pay damages or another sum. A plea of fundamental dishonesty under section 57, coupled with an application to dismiss the primary claim, amounted to a denial of liability for this purpose.

3. The alternative condition in rule 25.7(1)(c) was not satisfied. The court could not be satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount, because the fundamental-dishonesty issue remained live.

4. The court also could not determine a reasonable proportion of the likely final judgment under rule 25.7(4). The possible outcomes ranged from no recovery to the full amount claimed. There was therefore no irreducible minimum on which a proportionate interim payment could be based, applying the reasoning referred to in Chiron Corporation & ors v Murex Diagnostics Limited (No 13) [1996] FSR 578 and Trebor Bassett Holdings limited v ADT Fire & Security plc [2012] EWHC 3365 (TCC).

5. The decision in Salwin v Shahed [2022] EWHC 1440 (QB) did not assist. That case concerned conflicting evidence about the seriousness and consequences of injury. This case involved the distinct and fundamental question whether the claimant had dishonestly misrepresented the consequences of his injuries.

6. Whether the claimant had exaggerated his injuries and acted fundamentally dishonestly could only be determined at trial, after oral evidence from the medical experts and factual witnesses. The documentary evidence was insufficient for summary determination.