S57 CRIMINAL JUSTICE AND COURTS ACT FUNDAMENTAL DISHONESTY SUCCESS ON 2 SEPARATE GROUNDS IN THE SAME CASEOn Monday, 7 November 2016 Graham Williams, of Oriel Chambers, instructed by Aileen Scott of Horwich Farrelly, added to his tally of fundamental dishonesty findings by successfully employing Section 57 of the Criminal Justice and Courts Act 2015.
DDJ Dhaliwal, sitting in the County Court at Birmingham, found David Hall had been fundamentally dishonest under the terms of the Act, in the case he brought for damages for personal injury and other losses against Mr Raja Amin.
The claim arose from a road traffic accident that occurred on 19th June 2016, wherein Mr Hall contended his brother was a passenger in his vehicle and that both he and his brother sustained injury.
After hearing all of the evidence the Deputy District Judge found that the Defendant was correct in his assertion that the brother (who had intimated a claim, via a Claim Notification Form, through the same solicitors as the Claimant -and which claim waited in the wings) was not present in the vehicle. The Judge therefore found that the Claimant had been fundamentally dishonest in supporting a “related claim” as described in s57(8) of the Act. Further, and as Graham had invited the Court to consider in his Skeleton Argument, the Judge also found that the Claimant had been fundamentally dishonest in relation to his assertion of having suffered personal injury.
Some of the key points raised in cross-examination, shattering the Claimant’s credibility, were:-
- It was discovered that the Claimant had taken 46 photographs of the scene in a matter of minutes,including 18 which showed his vehicle - but none of which photographs featured his brother;
- The Claimant’s brother sat at the back of Court at the start of the case. His behaviour in the public gallery rather suggested that if he had been at the scene of the accident he would have been irrepressible and could not have been overlooked by the Defendant;
- The Claimant provided contradictory evidence as to who was in his vehicle;
- The Claimant’s brother was said to be getting a lift to an appointment at the time of the accident, yet the Claimant could not say what the appointment was for and he gave an inconsistent time for when his brother had made contact requesting the lift. He also could not say what was wrong with his brother's car, preventing him from using his own car, amongst numerous other points about the journey;
- Whilst the Claimant’s medical report indicated he had moved to his left and come into contact with the passenger seat causing injury, under cross-examination he stated he had not moved at all but that his brother had moved to his right and elbowed him in the ribs, causing injury;
- Contrary to his witness statement, the Claimant said that his brother had got out of his vehicle (and he also said his brother had had to climb over the driver's seat to get out of the vehicle, although it was pointed out that a photograph at the scene showed that the passenger door was open);
- The brother had not provided a witness statement to support the Claimant’s claim and did not give evidence in the case to address the occupancy and causation issues raised by the Defendant, despite having had his own claim;
- The Claimant had failed to disclose previous accidents,previous relevant health problems and the fact that he would potentially have had ongoing problems from his previous accidents, including a 2014 accident, at the time of the accident for which he was at Court;
- The Claimant confirmed that he had gone to the physiotherapist purely because of a recommendation from his solicitor;
- The Claimant provided inconsistent information about whether he had or had not gone to the accident and emergency department and /or his GP;
- It was noted that this was the only road traffic accident the Claimant had not seen his GP or someone at hospital for;
- The Claimant provided inconsistent information about whether his vehicle had been recovered or not - variously stating that his brother had his friends recover it and that he had never received a receipt and that he had organised recovery himself and did not know what he had done with the receipt.
As a result of the finding of fundamental dishonesty on two grounds the Deputy District Judge dismissed the Claimant’s claim, found that she would have awarded him hire charges as claimed, but for his claim having been fundamentally dishonest, awarded the Defendant its costs on the Indemnity Basis and offset the costs payable by the Claimant to the Defendant by the amount of hire charges that she would otherwise have awarded to the Claimant. Obviously, the costs order against the Claimant falls to be payable given the Claimant lost his costs protection because of his fundamental dishonesty.