Appeal: judge went ‘too far’ in applying fundamental dishonesty

By 15th August 2016 Uncategorised No Comments

The county court has overturned a decision to penalise a failed personal injury claimant with an order of fundamental dishonesty against her.

His Honour Judge Hodge QC, sitting at Manchester Civil Justice Centre (pictured), said District Judge Khan ‘went too far’ in penalising a woman who had made a claim against the restaurant chain La Tasca after claiming to have suffered a fall at its Trafford Centre branch in 2014.

Khan had ruled that the case involved fundamental dishonesty – and ordered the claimant, Margaret Edwards, to pay the defendant’s fixed costs of £7,210.

Khan said he did not believe the claimant’s version of events after finding inconsistencies in her story and concluded that it was difficult to see anything other than a dishonest claim.

But on appeal Hodge said that while the district judge was entitled to reject the claim, he was wrong to rule automatically that no accident had taken place and that the claim was a fabrication.

‘[The] conclusion that the claim was fundamentally dishonest falls well outside the ambit of reasonable judicial decision-making,’ said Hodge in Meadows v La Tasca (as yet unpublished).

‘It was not appropriate for the district judge to find that the accident had not happened in the circumstances described. He should have limited his decision… to a decision simply that the claimant had not made out her case on the evidence before him.’

Meadows had claimed between £1,000 and £10,000 for pain, suffering and loss of amenity when the matter came to trial in February.

In a judgment given on the day of trial, Khan said Edwards’ evidence and that of her dining partner was ‘riddled with inconsistencies’, in the mechanics of the fall, the location of the incident, and what they had said in the immediate aftermath.

At the end of his closing submissions, Harry East of Oriel Chambers, instructed by Plexus Law Limited, asked the court to consider whether there were grounds for an application of the fundamental dishonesty defence introduced under the Criminal Justice and Courts Act 2015.

The claimant, represented by Manchester firm Express Solicitors, said fundamental dishonesty had not been pleaded previously, which meant Meadows had not been given the chance to respond to it.

In their appeal, Meadows’ lawyers said the district judge was wrong to conclude the claim was fundamentally dishonest based on the evidence he had seen.

Hodge agreed that the definition of fundamental dishonesty should be something ‘going to the root of the matter’ and not a collateral matter. He said dishonesty could be differentiated to account for cases which were not ‘fundamental’ and so did not result in exposure to costs liability.

Hodge added: ‘The inconsistencies and curiosities highlighted by the judge did not entitle him to go further and to find that the claim had been fabricated, and thus was fundamentally dishonest.’

The costs order against the claimant was reversed and the defendant ordered to pay an additional £12,500 for the costs of the appeal.

The judgment is the latest attempt by the court to define what fundamental dishonesty constitutes, with both claimants and defendants having secured rulings in their favour in the last year.

Via: http://www.lawgazette.co.uk/law/appeal-judge-went-too-far-in-applying-fundamental-dishonesty/5057074.article

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