Jarmarleos Do Zurius v Secretary of State for Health and Social Care & Anor

A claimant must prove the authenticity of a document when that issue is fairly raised. The court may permit a late authenticity challenge where the interests of justice require it, but a positive allegation of forgery ordinarily requires sufficient advance notice to permit a fair response.

Fundamental dishonesty under CPR 44.16 concerns dishonesty going to the root of the whole claim or a substantial part of it. Dishonesty used only to attack credibility or arising reactively in interlocutory matters will not necessarily meet that threshold. A claim also fails where essential factual elements are not proved, even if the precise legal duty is left unresolved.

The claimant brought two claims arising from events in 2006. He alleged that an NHS walk-in centre had disclosed confidential medical information and that an NHS trust had refused him employment after receiving malicious reports about his character.

The court tried preliminary issues concerning breach of duty, limitation, recoverability of heads of damage, and whether the claim was fundamentally dishonest. The claim was heard after directions for a preliminary-issues trial made following refusal of the defendants’ summary judgment application.

The central issues were whether the claimant had proved the essential facts underlying either claim, whether the claims were time-barred, whether he had shown a real and substantial chance of employment, and whether the claim was fundamentally dishonest for CPR 44.16 purposes.

1. Outcome. Both claims failed. The claimant had not proved that he attended the walk-in centre and discussed possible HIV-AIDS, that medical information was leaked or accessed, or that the second defendant received and considered reports that he posed a threat to nurses.
2. Authenticity and forgery. The court permitted the defendants to raise a late authenticity challenge, applying the approach in McGann v Bisping and considering the seriousness of the default, the absence of unfairness, and the risk of a miscarriage of justice. The burden of proving authenticity remained on the party relying on the document. The four Hospital Letters were found to be forged. The claimant failed to prove the authenticity of the Yetty Letter and VD Test Letter, but insufficient notice had been given for a positive finding that either was forged. The distinction between requiring proof of authenticity and alleging forgery was material because a forgery allegation may require expert or other provenance evidence.
3. Essential facts and evidence. The court did not need to resolve the precise causes of action or duties. Each claim failed because essential factual propositions were not established. If the Yetty Letter were admissible, it was unreliable hearsay under section 4 of the Civil Evidence Act 1995. The court also drew an adverse inference from the claimant’s failure to permit inspection of originals, applying ordinary rationality and the contextual approach in Efobi v Royal Mail Group Ltd.
4. Limitation. Any negligence claim was time-barred under the Limitation Act 1980. The claimant had not proved a later date of knowledge or deliberate concealment. Any Human Rights Act 1998 claim was also out of time, and an equitable extension was not justified. The court left open the application by analogy of a limitation period to breach of confidence.
5. Loss of employment. Even assuming a breach by the second defendant, the claimant had not shown either that he would have been appointed or that, after interview, he retained a real and substantial chance of appointment.
6. Fundamental dishonesty. The claimant had forged documents, made dishonest social-media representations, and dishonestly explained the loss of originals. Those matters did not make the claim fundamentally dishonest because they did not go to the root of the whole claim or a substantial part of it. The application under CPR 44.16 was therefore refused.

The parties were invited to agree an order reflecting the judgment.

First-instance decision. The judgment records that the defendants’ summary judgment application was refused by Master Dagnall on 4 December 2023, with directions for a trial of preliminary issues.