Fundamental Dishonesty: Adequate Notice And Litigants In Person


Costs & Fees


Andrew Jenkinson v Gary Robertson [2022] EWHC 756 (Admin)

“In my judgment the approach taken by the Defendant did not comply with the requirement of adequate notice.  Indeed, it is difficult to see that the Claimant has given any real notice at all, apart from a vague and deliberately unparticularised allusion to the possibility of a Section 57 Application.  Merely alluding to such a possibility does not, in the circumstances of this case, amount to adequate notice.  Where that not so, then the Defendant could routinely flag up the possibility of a S.57 application in advance of trial and then seek to rely on the fruits of a successful cross-examination to support such an application without giving any further notice.  I do not consider that approach to be fair or procedurally sound.  A Defendant can of course give a Claimant fair warning that if the evidence turns out a certain way then a Section 57 Application might follow.  However, a Defendant cannot simply rely upon putting the Claimant to proof in order to satisfy the requirement of adequate notice; something more specific would be required so as to alert the Claimant (perhaps after the evidence has emerged under cross-examination) as to which aspects of his case were considered to be fundamentally dishonest.”

Mr. Justice Choudhury has re-visited the case law considering fundamental dishonesty and the requirement to provide notice to a Claimant when the Defendant is seeking or intending to seek a finding of fundamental dishonesty or exaggeration.  His ratio, at paragraph 40 above, appears to develop the requirement of notice one step further than the decision in Howlett.  

In Jenkinson, at first instance the Claimant was a litigant in person who had been injured in a road traffic accident.  Liability was admitted and he was put to proof as to the causation of certain injuries, in particular the injuries to the mid-back endangering the development of Schmorl’s Nodes and the permanent symptoms of pain and related disability which was worsening over time.  The principle issue was whether or not there was any causative link between the accident and the mid-back injury and thus the persisting thoracic pain symptoms.

At first instance, HHJ Dodd held the Claimant to have been fundamentally dishonest and thus triggered the provisions of Section 57 of the Criminal Justice & Courts Act 2015.  He did so on the basis that the Claimant had seemingly attempted to manipulate expert evidence; presented with medical records which contradicted his case; he had multiplied its value rather than moderated his claim; and that he had accepted during trial that he had not incurred any loss with regard to certain claims he had made relating to the provision of assistance.  

Grounds of Appeal

The Claimant, who is a litigant in person at first instance but was represented by Counsel at the appeal, forwarded the appeal on three grounds:

Ground 1: That as a matter of procedural fairness, the Claimant was not given sufficient notice of, or opportunity to respond to, allegations of fundamental dishonesty.

Ground 2: The Judge wrongly refers to the burden of proof, effectively requiring the Claimant to prove that he had not been fundamentally dishonest.

Ground 3: The Judge was led into error, or simply wrong in relation to each of the factors on which he based his decision that the Claimant was fundamentally dishonest.

Prior Case Law

Mr. Justice Choudhury embarked upon a helpful analysis of the case law relating to fundamental dishonesty which portrayed the evolution of the requirement to put the Claimant on notice.

Referring to the London Organising Committee of the Olympic and Paralympic Games (in Liquidation) v Sinfield [2018] EWHC 52 he considered the finding of Mr. Justice Knowles, who noted at paragraph 62 in that finding that it was for the Defendant to prove on the balance of probabilities that the Claimant had acted dishonestly in relation to the primary claim when seeking a finding of fundamental dishonesty within the meaning of Section 57.  Dishonesty was to be judged according to the tests set out by the Supreme Court in Ivey v Genting Casinos Limited.

He referred to Lord Justice Newey’s lead judgment in the case of Howlett & Anor v Davies & Anor [2018] 1 WLR 948, at paragraph 31 of that judgment:

“Statements of Case are, of course, crucial to the identification of the issues between the parties and what is to be decided by the Court.  However, the mere fact that the opposing party has not allegedly dishonesty in his pleadings will not necessarily bar a judge from finding a witness to have been lying; in fact, judges must regularly characterise witnesses as having been deliberately untruthful even where there had been no plea of fraud…it must be open to the trial judge, assuming that the relevant points have been adequately explored during the oral evidence, to state in his judgment not just that the Claimant has not proved his case but that, having regard to matters pleaded in the Defence, he has concluded that the alleged accident did not happen or that the Claimant was not present.  The key question in such a case would be whether the Claimant had given adequate warning of, and a proper opportunity to deal with, the possibility of such a conclusion and the matters leading the judge to it rather than whether the insurer had positively alleged fraud in its Defence”.

Referring to Mustard v Flower & ORS [2021] EWHC 846 (QB) and the judgment of Master Davison at paragraph 24 of that decision:

“…where the Defendant does have a proper basis for a plea of fundamental dishonesty and intends to apply under Section 57, then, subject to the direction of the judge dealing with case management of the trial judge, that should ordinarily be set out in a Statement of Case or a written application and should be done at the earliest reasonable opportunity.  What I am intending to discourage are pleas of fundamental dishonesty which are merely speculative or contingent.”

Finally, he noted the leading judgment in Ivey v Genting Casinos [2017] UKSC 67 which laid down the two stage test for a finding of dishonesty which required that first subjective analysis of the actual state of the individual’s knowledge or belief as to the facts must be undertaken and that the reasonableness or otherwise of the individual’s belief would be a matter of evidence which went towards whether or not he held that belief rather than whether he held that belief reasonably.  The second stage being the objective test; whether or not his conduct was honest or dishonest as determined by the Tribunal by applying the standards of ordinary, decent people.

In his judgment, Mr. Justice Choudhury made clear that the requirement to put a litigant in person on notice of an allegation of fundamental dishonesty is higher than those Claimants who are legally represented, at paragraph 23:

“However in a case involving a litigant in person, the Court would ordinarily seek to ensure that the nature of any fundamental dishonesty allegation is properly understood by the litigant in person (whether by requiring the Defendant to set out the particulars of the allegation in writing or otherwise), and that adequate time is given to the litigant in person to consider the allegation.  The interests of fairness would generally militate against requiring a litigant to deal with a submission of fundamental dishonesty “on the hoof” or immediately after it had been raised for the first time in closing submissions.”

He also noted at paragraph 32 that:

“It is in the interests of basic fairness that a Claimant should be given adequate warning of, and a proper opportunity to deal with, the possibility of a finding of fundamental dishonesty…what amounts to such notice or opportunity in any given case will depend upon the circumstances.  Ordinarily, the allegations will be either pleaded or set out in writing, but there may be cases where that is not necessary…”

In the index case, the only instance whereby the litigant in person was put on notice had arisen from a letter sent by the Defendant which asserted that the claim had been exaggerated and unreasonable.  The Court did not find for the Defendant on this submission, finding that a claim that was unreasonable was not necessary dishonest, but it may simply be misconceived and where it is alleged that the claim was fundamentally dishonest then the basis upon which that dishonesty arises or is alleged to have arisen ought to be made clear by the Defendant.  It was a specific feature of the case that the Claimant had actually replied to this correspondence, seeking clear details of the allegations of dishonesty.  This was not replied to.


Increasingly the success of submissions in the county court to the effect that Dishonesty has not been pleaded and the Claimant has not been put on notice of the allegation are finding purchase, despite direct cross examination to that effect.

The position is laid out at paragraph 40 of the Judgment, above, indicates that safest way for Defendants to rely upon an allegation of fundamental dishonesty is to make clear either in their pleadings, or expressly in correspondence, once the proceedings are in motion, that the Defendant has concerns as to the honesty of the allegations being made.  Arguably, a simple defence which outlines the discrepancies and peculiarities contained within the Defendant’s reporting to date, will be capable of being undermined by submissions to the effect that such pleadings are far from a clear and unequivocal notice to the Claimant as regarding the honesty of such claims.

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