Uchechukwu Atuanya v Ministry of Defence

For the purposes of CPR 44.16(1), conscious exaggeration of symptoms to convey genuine suffering may be dishonest, even where the claimant does not regard the conduct as dishonest. Dishonesty is assessed under the two-stage approach in Ivey v Genting Casinos (UK) Ltd: the court first determines the claimant’s actual knowledge or belief, then applies the standards of ordinary decent people. Inconsistency or inaccuracy alone does not establish dishonesty, and psychiatric illness may explain variable presentation or unconscious exaggeration. Dishonesty is fundamental where it goes to the root of the whole claim or a substantial part of it. A claimant who deliberately overstates a material feature of a personal injury claim may therefore lose QOCS costs protection.

The claimant, a former soldier, brought a substantial claim against the defendant for a non-freezing cold injury and associated psychiatric symptoms. He discontinued the claim, but the court directed that the defendant’s allegation of fundamental dishonesty should be determined because it affected costs protection under the QOCS regime. The central issues were whether the claimant had consciously exaggerated his physical symptoms, sensitivity to cold and functional limitations, and whether any dishonesty was fundamental within CPR 44.16(1).

1. Applicable principles. The court applied Ivey v Genting Casinos (UK) Ltd, holding that the fact-finder must first establish the claimant’s actual state of knowledge or belief and then decide whether the conduct was dishonest by the objective standards of ordinary decent people. The claimant need not appreciate that the conduct was dishonest.
2. Knowingly making statements which are untrue in order to convey genuine suffering is nevertheless dishonest under CPR 44.16(1). Extending QOCS protection to such conduct would undermine the policy of encouraging honest claims and discouraging dishonest litigation.
3. Inconsistency, inaccuracy and exaggeration do not, without more, prove dishonesty. They may result from fallible memory, psychiatric illness, variable symptoms or unconscious exaggeration. The court accepted that the claimant’s psychiatric illness could explain variations in his gait and presentation, and found no dishonesty in his accounts of psychological distress, stair-climbing or feigned limping.
4. Applying Howlett v Davies, dishonesty is fundamental where it goes to the root of the whole claim or a substantial part of it. The claimant’s deliberate overstatement of his need for warm clothing was central to his claim that he could not work outdoors or in cold conditions and to his substantial loss-of-earnings claim.
5. The historic allegations of forgery were not determined because they were outside the alleged dishonest claim, concerned old events, lacked sufficient evidence and were unnecessary to decide the issue. The claimant was nevertheless found fundamentally dishonest in the claim. The court indicated that a costs order would be made and invited submissions on its terms.