CAUTION: SLIPPERY CLAIMANT

Holly Clegg considers: If a Judge finds the Claimant’s evidence to be incredible, should the Defendant necessarily seek a finding of fundamental dishonesty? Not unless such a finding is clearly sustainable on the evidence, according to the case of Meadows v La Tasca Restaurants Limited.

Background

Mrs Meadows slipped on a pool of liquid on the floor of a restaurant and suffered various injuries as a result. District Judge Khan, who dismissed the claim, heard the case at first instance. He concluded that he could not rely on anything that Mrs Meadows or her witness had told him because of the number of inconsistencies in their accounts.

Following Judgment, Defence Counsel applied for costs under CPR 44.16(1). It was submitted that Mrs Meadows did not have the benefit of QOCS protection as the judge had made adverse credibility findings.

Counsel for the Claimant raised three arguments in objection:

1. First, fundamental dishonesty had not been pleaded or raised as a form of defence;
2. Second, fundamental dishonesty had not been put in cross examination – it was merely suggested that the accident had happened elsewhere; and
3. Third, the judge had not made an explicit finding of fundamental dishonesty; he had only highlighted the inconsistencies in the claimant’s evidence to demonstrate that she has not proved her case on the balance of probabilities.

Finding for the Defendant on its application for costs, the District Judge held that Mrs Meadows had been fundamentally dishonest, and ordered that the Defendant’s costs be enforceable.

The Appeal

His Honour Judge Hodge QC (sitting in the Manchester County Court) allowed the appeal for the reason that “District Judge Khan went too far, on the basis of the evidence before him, in concluding, not simply that the accident had not taken place as alleged by the claimant and her witness, but that no accident had taken place at all, and that the claim was a fabrication on the part of the claimant and her supporting witness”. The unsuccessful respondent was ordered to pay the appellant’s costs of the appeal, which were not fixed, and were summarily assessed in the amount of £12,500.

Lessons

The appeal provides a valuable lesson to Defence advocates. Whilst it might be tempting to seek a finding of fundamental dishonesty following the dismissal of a claim on the basis of adverse credibility findings, be alive to the risk of the disgruntled claimant successfully appealing.

It may prove useful to bear in mind the following points before making a fundamental dishonesty application:

1. Plead fundamental dishonesty if you have evidentially well founded doubts about the veracity of the claim;
2. If the Claimant appears to lack credibility during cross-examination, accuse him or her of being dishonest about a fundamental aspect of their claim; and
3. In the event of strong adverse credibility findings, resist the temptation to seek a finding of fundamental dishonesty if the judgment is plainly vulnerable to appeal.

Holly Clegg is a Pupil at Park Square Barristers.