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Fundamental Dishonesty: Illegality & Criminality

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Mr Justice Ritchie handed down judgment in the case of Dorinel Cojanu v Essex Partnership University NHS Trust [2022] EWHC 197 (QB).

Background

This was an appeal against a funding of fundamental dishonesty under S.57 of the Criminal Justice & Courts Act 2015.

The Claimant had been an inmate who had sustained a laceration to his finger prior to his being placed on remand.  He had been pencilled in for surgery which was then cancelled.  The causation and quantum element of his claim was based upon the allegation that if he would have received sufficient treatment at an earlier stage, then he would have fully recovered the use of his finger; as his treatment had been cancelled it resulted in him sustaining a permanent disability.

The manner in which the Claimant had come to sustain injury is an important issue in this case.  He was convicted of attempted murder in relation to the incident.  The allegations that he had attacked his wife whilst drunk and stabbed her being proven.  

The Defendants applied and were granted permission to file an Amended Defence.  The Defence expressly alleged fundamental dishonesty by the Claimant raising the issue with regard to the circumstances of how the injury had been sustained and his conviction.  It alleged that the Claimant served a witness statement in a personal injury claim which contained evidence that was fundamentally dishonest by stating that the Claimant’s wife had attacked him, whilst he merely defended himself from the knife attack which in turn caused the laceration to his fingers.  Further, in February 2016 the Claimant had been offered surgical reconstruction, he had stated that he would consider the same but never took up the offer.  The illegality allegation was based upon the fact that the claim resulted from his own criminal actions and therefore he should be denied any damages.  

Further dishonesty was alleged relating to the quantum claimed.  He had claimed a significant amount for loss of earnings stating that he had been employed as a carpenter whilst in the UK, his homeland being in Romania.  He had actually been deported to Romania at the time this schedule was served, where surgery was cheaper. It was alleged that it was improper for him to seek an award of damages in relation to future loss of earnings based on UK income rates rather than Romanian income rates in circumstances where it was unlikely that he would ever return to the UK.

At first instance, Mr. Recorder Gibbons, held that the Claimant had been fundamentally dishonest on the basis that:

i) The Claimant had made no statement as to the real cause of the injury in his letter before action or his statement of case.

ii) The circumstances of the injury as expressed by the Claimant were found to be far from the true picture.

iii) The Claimant had therefore perpetrated a misleading impression to the experts as part of his claim by never mentioning the conviction for attempted murder.  The Claimant had alleged that his deportation from the United Kingdom would not have occurred if he had not consented to it, which was untruthful.

iv) The basis of the Schedule that had increased to the sum of £125,300  had entirely assumed that the Claimant lived and worked in the UK despite the fact that by the time the Schedule had been served, the Defendant had been deported to Romania.  

v) The Claimant alleged that he had been employed in the UK as a carpenter and, at best, had an intermittent and itinerant employment history, and had earned only a few hundred pounds over many years since 2008.  No earnings had been recorded in the year prior to which the offence had been committed.  

vi) As such, the Claimant had no realistic possibility of living and working in the UK but claimed damages on the basis of a carpenter’s salary, care and costs of medical treatment in the UK.  

As such, the Recorder found that substantial elements of the claim for special damages were fundamentally dishonest and dismissed the entirety of the claim under S.57.

The Appeal

Mr. Justice Ritchie considered the case law regarding fundamental dishonesty and illegality and at paragraph 47 held that:

“I extract from this judgment and the previous case law that there are 5 steps to be taken by a trial judge when faced with a defence under S.57 before a finding can be made of fundamental dishonesty:

(1) The S.57 Defence should be pleaded; the burden of proof lies with the Defendant to the civil standard;

(2) A finding of dishonesty by the Claimant is necessary;

(3) as to the subject matter of dishonesty to be fundamental it must relate to a matter fundamental in the claim.  

(4) Dishonesty relating to a matter incidental or collateral to the claim is not sufficient;

(5) As to the effects of the dishonesty, to be fundamental,  it must have a substantial effect on the presentation of the claim.”

The judge held that at paragraph 61…

“…the mechanism by which the Claimant received his cut was irrelevant to the success in the clinical negligence claim.  The Claimant did not need to prove how he was cut to win the civil action.  He was injured before admission to prison.  At that time he was not convicted of anything.  It matters not whether he had suffered the injury opening a tin of beans, in gang warfare or whilst attempting to murder his wife.  In the civil claim at first the Claimant said nothing of the cause of the cuts.  Nor did he need to.  Later, when the Defendant pleaded it out, the Claimant lied about the cause. The Claimant was being dishonest in relation to his crime during which he was injured for which he has never admitted his guilt.  The cause of the cut finger has no relevance to the clinical negligence claim.  In my judgment the mechanism of how he cut his finger is incidental to the claim or collateral thereto.

The dishonesty in relation to how he suffered the cut only connected with the civil claim because it impinged on the Claimant’s credibility, an even then only in relation to his crime.  The Claimant’s credibility on that issue was not relevant directly to his evidence in the civil claim and did not affect the liability part of the trial because liability was determined on expert evidence, not the Claimant’s evidence.

This gives rise to the question: ‘Can dishonesty affecting the Claimant’s credibility in relation to a crime he has committed before the civil claim (and his deportation at the end of his sentence), be fundamental to the evidence on quantum in the civil claim’…in addition, I must ask ‘does the Claimant’s credibility on that issue have significant adverse effect on the way the Defendant should run its defence on liability or quantum?’…

…firstly, all citizens are equally entitled to come before the Courts in civil claims.  Those with the longest of previous convictions and those without.  Some will have better credibility than others, but S.57 is not a credibility filter barring those with previous convictions from brining civil actions.  S.57 focusses on the claim and the matters fundamental thereto and the Claimant conduct therein.”

The judgment went on to say that negligent Defendants must take their victims as they are found and that not all victims are angels.  Lies may cause the Defendant to exhibit increased wariness and suspicion but that such suspicion and wariness occurs in many cases for a number of reasons.  However, at paragraph 67:

“…I do not perceive these challenges to be within the mischief target of S.57.  The primary rationale for S.57 is to stamp out fraudulent and dishonest claims, not to bar unrepentant or “in denial” criminals from the civil law.”

At paragraph 93:

“Therefore for the reasons set out above I do not consider that the findings of dishonesty made by the Judge in relation to background and lead up to the civil claim, namely the crime and the way in which the Claimant came to suffer cut fingers, to be sufficient to come within the term of fundamental dishonesty relating to the Claimant hence that dishonesty finding falls outside S.57.

In addition, I consider that the Judge’s findings of dishonesty against the Claimant in relation to quantum were wrongly made because he failed to apply the correct five step test in law of dishonesty to the facts.  For that reason, the Claimant’s evidence on quantum does not come within the S.57 ambit.”

Comment

The ruling gives detailed analysis as to the separation that the Court must draw between illegality, criminality and what can be constituted as being considered dishonest in relation to the claim. Namely that such dishonesty must go to the heart of the claim, a principle already widely accepted.  A more important issue arose with regard to the first step that the Court stated ought to be taken when considering whether or not a finding of fundamental dishonesty within the ambit of S.57 was appropriate.

That step was that fundamental dishonesty must be pleaded.  This judgment was handed down shortly before the judgment in Jenkinson, which can be found in this series of case comments on fundamental dishonesty.

The finding in Jenkinson went some way to solidifying the growing practice whereby an allegation of fundamental dishonesty should be pleaded but is still held to the Howlett finding that it would not always necessarily be the case as long as the Claimant had been put on sufficient notice.

Mr. Justice Ritchie seems to have taken the position one step further by indicating that it was a necessary step in the 5 step guidelines he laid down in relation to fundamental dishonesty findings.

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