PI Brief Update

The 'fundamental' in fundamental dishonesty: Attique Denzil v Usman Mohammed and UK Insurance Ltd [2023] EWHC 2077 (KB) - Amy Lanham Coles, Temple Garden Chambers

25/08/23. In this case, the Appellant had asserted at trial that he had suffered various injuries in a road traffic accident, including an alleged injury to his head causing swelling for three to four days. This head injury had not been pleaded and was not referenced in the medical evidence but appeared in the Appellant’s witness statement and oral evidence. In closing submissions, however, this head injury was not pursued as part of the pleaded case for pain, suffering and loss of amenity (PSLA). The trial judge held that there had been no injury to the Appellant’s head and the Appellant had been dishonest in relation to that specific injury. In relation to the other injuries, it was held these had not been proven to the sufficient standard. Further, the trial judge regarded the Appellant’s dishonesty in relation to his head injury as “fundamental” for the purposes of s. 57 of the Criminal Justice and Courts Act (“CJCA”) 2015. He found that although the alleged head injury was “nominal” in respect of the overall injuries, the Appellant’s “dishonesty [goes] to the root of the claim because of the assertion of head injury in circumstances where no head injury was sustained”. The trial judge considered it “axiomatic” that the dishonesty was fundamental.

Issues

The Appellant appealed this finding of fundamental dishonesty, although conceded he been dishonest. He challenged what he submitted was a bare assertion of fundamental dishonesty; arguing that his purported head injury did not substantially affect the presentation of his case, as it was not part of his pleaded case on quantum. The Respondent argued, inter alia, that whilst the head injury was minor in terms of valuation, invention was more significant than exaggeration and was here designed to bolster the credibility of the overall claim. The Respondent emphasised the profundity of deceit and reminded the Court that it should be slow to displace the trial judge’s findings of fact.

Held

Traversing the case law on fundamental dishonesty, Freedman J began by recalling the primacy of the statutory wording, warning against overreliance on corollary terms or metaphors (paras 20, 23 & 41(i)).

He cited the following key principles:

1. the question of whether dishonesty is fundamental is a question of fact and degree in every case (as per Elgamal v Westminster City Council [2021] EWHC 2510at para 72, cited at para 41(iii));

2. in determining the answer to the question, the judge ought to undertake a holistic exercise, considering the impact of the dishonesty on both the Appellant’s case on liability and quantum and whether the dishonesty substantially affected the presentation of the case (in line with LOCOG v Sinfield [2018] EWHC 51 at paras 62-63 and Elgamal at para 73, cited at paras 41(ii) & (iv)).

Turning to this case and whilst acknowledging “the need to give great weight to the evaluative judgment” of the trial judge (para 40), Freedman J concluded his reasoning had been deficient. The bare assertion that the Appellant’s dishonesty went to the “root of the claim” was insufficient to justify a finding of fundamental dishonesty (para 42(ii)). It was “objectionable” to conclude that it was “axiomatic” that the dishonesty was fundamental (paras 15 & 42(i)).

Crucially, the head injury was not part of the pleaded claim for PSLA (paras 42(iii) & (iv)). It was also “minor and very short-lived both in itself and relative to the neck and shoulder injuries” (para 45). Accordingly, it had not substantially affected the presentation of the case on either liability or quantum (para 46). The trial judge’s finding of fundamental dishonesty was therefore wrong and set aside (paras 48 & 51).

The judgment provides a useful reminder of the principled approach that must be taken when pursuing a finding of fundamental dishonesty.

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