Kirsty Williams-Henry v Associated British Ports Holdings Ltd

Under section 57 of the Criminal Justice and Courts Act 2015, a personal injury claim must be dismissed where the claimant has been fundamentally dishonest in relation to the primary or a related claim, unless dismissal would cause substantial injustice. Fundamental dishonesty requires proof that the claimant acted dishonestly, that the dishonesty concerned a matter fundamental to the claim, and that it substantially affected the presentation of the claim. The court must assess the claimant’s state of mind and then apply an objective standard of dishonesty. Substantial injustice is assessed by balancing all the circumstances, including the scale of the dishonesty, its effect on the litigation, the genuine injury, costs, interim payments and the effect of dismissal on the claimant.

The claimant suffered a moderately severe traumatic brain injury and other injuries after falling from a pier owned or occupied by the defendant. Liability had been settled at two-thirds in the claimant’s favour. The trial concerned quantum and the defendant’s application under section 57 of the Criminal Justice and Courts Act 2015.

The defendant alleged that the claimant had deliberately exaggerated or fabricated symptoms, disabilities and care needs in witness statements, benefit applications, medical assessments and evidence to the court. The central questions were whether the claimant had been fundamentally dishonest and, if so, whether dismissal of the claim would cause substantial injustice.

1. Fundamental dishonesty. The defendant bore the burden of proving dishonesty on the balance of probabilities. The claimant had repeatedly and deliberately exaggerated or fabricated her hearing loss, mobility restrictions, pain, dizziness, fatigue, cognitive difficulties, need for care and inability to work or undertake ordinary activities. The dishonesty was fundamental because it concerned matters central to the valuation and presentation of the claim and substantially increased the work required to investigate and defend it.
2. Section 57 framework. The court adopted the approach stated in Cojanu v Essex [2022] EWHC 197 (QB): the court must identify the claimant’s state of mind as a matter of fact and then apply an objective standard to determine dishonesty. Section 57 may be raised late where it has reasonably arisen late, although pleading is ordinarily required where the allegation is known earlier.
3. Substantial injustice. Loss of genuine damages, by itself, is not substantial injustice. The court must balance all the circumstances, including the amount claimed and the genuine award, the breadth and seriousness of the dishonesty, its effect on the litigation, the claimant’s genuine disability, the defendant’s culpability, likely costs consequences, interim payments and the practical effect of dismissal. The court declined to adopt aspects of the approaches in London Organising Committee of the Olympic and Para Olympic Games v Sinfield [2018] EWHC 51 and Woodger v Hallas [2022] EWHC 1561 (QB) which treated the effect of dismissal as something to be excluded from the assessment.
4. Application and order. The claimant had been fundamentally dishonest. Her genuine damages were assessed at £596,704 on the two-thirds liability basis. The court held that dismissal would not cause substantial injustice, particularly given the extent of the dishonesty, the claimant’s good recovery, her ability to work and live independently, and the likely costs consequences. The claim was dismissed under section 57. The £75,000 interim payments were not ordered to be repaid because repayment would probably have caused the claimant to lose her home.