Judge denies lying claimant a way round fundamental dishonesty test

By 13 February 2018

 

The High Court this week added more weight to the body of cases edging towards the rigid application of new fundamental dishonesty rules in civil claims.

Sitting in the Queen’s Bench Division in Razumas v Ministry of JusticeMrs Justice Cockerill indicated that the claimant had compromised his claim by lying about an important element of the case.

Razumas, a former prisoner, brought an action for clinical negligence against the MoJ over medical care while in custody, which he said had failed to diagnose a tumour. He subsequently had a leg amputated above the knee. The claim was dismissed on its merits.

As part of the judgment, the court heard that the claimant lied about seeking treatment during the relevant period, with the MoJ submitting that he had sought to base one of his allegations of negligence on a false assertion.

According to section 57 of the Criminal Justice and Courts Act 2015, that conduct can amount to striking out of the claim unless the court is satisfied the claimant would suffer ‘substantial injustice’ if the claim were dismissed.

Razumas urged the judge to regard his dishonesty as being short of fundamental, submitting that the untruths uncovered ‘barely scratch the bark’ of the root of the case. Notably, the claimant also submitted that he would suffer substantial injustice because of the ‘gross disproportion’ between the lies and the effect of depriving him of an award.

Cockerill said fundamental dishonesty was made out: the admitted dishonesty was part of the potential success of the claim and he had substantially affected the presentation of his case.

The judge also noted that Razumas could not find a ‘way out’ by arguing he had suffered substantial injustice and that to allow this would be to ‘cut across what [section 57] is trying to achieve’.

Cockerill said ‘something more’, other than the mere loss of damages to which the claimant was entitled, was required to establish substantial injustice, adding that if a there was a claim it would fail at this stage.

The case is the latest example of the court grappling with the application of the new law.

Last month, the High Court found in LOCOG v Sinfield that a claimant should be found to be fundamentally dishonest if the defendant could prove ‘on a balance of probabilities’ that they had acted dishonestly in relation to the primary or related claim.

In October in Howlett v Daviesthe Court of Appeal ruled that a district judge was entitled to find that a civil claimant was fundamentally dishonest – despite the term not being expressed by the defendant during trial.

Northwest firm Michael Jefferies Injury Lawyers acted for Razumas; the Goverment Legal Department for the MoJ.