Section 57 Application to High Value Cases: Stanton v HunterPark Square Barristers
On 31st March 2017 Recorder Hatfield QC, sitting at Liverpool County Court, dismissed the claim in Stanton v Hunter pursuant to section 57 of the Criminal Courts and Justice Act 2015 (judgment available on Lawtel). The Defendant admitted primary liability but alleged contributory negligence in response to the claim for damages as a result of personal injuries arising from an accident which occurred whilst he was working on the Defendant’s property. Following a two-day trial, the Judge found although the Claimant had suffered a genuine injury, he had deliberately and dishonestly exaggerated the extent of his symptoms and in particular his ability to work and dismissed the entire claim.
The Judgment is a useful example of the application of section 57 in a high value claim arising out of an accident causing some genuine and serious injuries but where the Claimant has dishonestly exaggerated the extent of those injuries.
Section 57 applies where the court finds that the claimant is entitled to damages however finds on the balance of probabilities the claimant has been fundamentally dishonest in relation to the personal injury claim (or a related claim). The Court must dismiss the primary claim (including the genuine elements of the claim) unless it is satisfied that the claimant would suffer “substantial injustice” if dismissed.
The court’s order dismissing the claim must record the amount of damages for the genuine element of the claim which it would have awarded but for the dismissal of the claim and this amount must be deducted from the amount awarded to the Defendant in costs.
Stanton v Hunter
The Claimant fell through the roof of an outbuilding onto the ground below, sustaining multiple rib fractures, a comminuted and displaced fracture of the left wrist, subluxation of the left shoulder and splenic damage. He received treatment in hospital for one month. He alleged ongoing symptoms of pain and required reconstructive surgery on his shoulder. His particulars of claim asserted that he had not returned to work as a taxi driver since the accident and was unlikely to work again. Expert reports supported this claim in respect of his inability to work following examinations in 2013 and 2014. The Claimant’s first Schedule of Loss claimed past and future loss of earnings in the sums of £35,651 and £83,376 respectively.
Surveillance evidence obtained by the Defendant showed that the Claimant was working as a taxi driver in early 2014 and showed no apparent limitation in movement of his shoulder when performing manual tasks. Employment records showed that the Claimant returned to work at three months’ post-accident. The Claimant resiled from his original claim for loss of earnings at trial, conceding that he was doing some work. He relied on his limited literacy, difficulty with documentation and post-accident psychological state to explain the statements given to experts. The Claimant rather creatively claimed that he understood the notion of a “return to work” as a “return to doing more than breaking even at work”.
The Judge found that notwithstanding literacy or learning difficulties, the Claimant did know that he was providing false instructions in relation to loss of earnings. The repeated falsehoods put forward about this issue can only be described as fundamental. The Judge found that the evidence demonstrated “a Claimant conscious and capable of manipulating his declarations to the Inland Revenue, and wholly aware of the significance of his lies in this claim, evidenced by his wish to abandon the earnings claim when asked to disclose the Delta records [his solicitors’ file of papers].”
Recorder Hatfield QC considered whether the Claimant would suffer “substantial injustice” if she were to dismiss the claim.
“Mr Vaughan accepted that the miserable consequences are likely to accrue for Mr Stanton following this Judgment cannot here be equated with “substantial injustice”, or the purpose of the legislation would be frustrated. No basis of a finding of substantial injustice was put to me, and I find there to be none”.
The Judge then engaged in a process of distinguishing the genuine symptoms from the dishonest assertions, in order to value actual injuries sustained.
Whilst medico-legal experts for both parties did not consider that the Claimant had deliberately lied to them, the Judge did not consider their opinions to be reliable in circumstances where they had not known the full extent of the Claimant’s dishonesty and in particular they had not had sight of the file of papers by the Claimant’s former solicitors which showed that the Claimant did know that he was providing false instructions in relation to loss of earnings.
The Judge found that the Defendant had not established contributory negligence against the Claimant.
Had the Judge not had to dismiss the claim in its entirety the Judge would have awarded £51,625 (including £35,000 for general damages and modest awards for care, DIY and treatment amongst others) to the Claimant.
The case highlights the importance of anti-fraud strategies including surveillance evidence, which showed that at a similar time as the Claimant was asserting to medico-legal experts that he was unable to work as a result of his symptoms, he was in fact continuing to work regularly and had exaggerated the reduction in his range of movement.
No arguments were put forward regarding “substantial injustice” or its meaning. Perhaps it was clear on the facts of this case that this threshold could not be established, however some guidance would have been useful for higher value cases where the Claimant has some genuine and permanent disability. This is currently open to the interpretation of the court hearing the case, although the hurdle must be a significant one for the Claimant to overcome. When discussing the Bill in its current form before it passed through the House of Lords, Lord Marks and others considered the application of section 57 to high value cases. They commented that the dismissal of a lifetime care claim untainted by dishonesty would not meet the threshold for “substantial injustice” as a claimant would receive any necessary care from the state in any event. It remains to be seen whether this provision amounts to a realistic saving provision for dishonest claimants.
Kate Wilson is a member of Park Square Barristers’ fraud team. Kate deals with all aspects of indemnity disputes including motor, businesses and property.