Section 57 – can a Defendant obtain an order for strike out before a trial
Judy DawsonFollowing on from recent training provided to solicitor and insurer clients in relation to obtaining strike outs pursuant to section 57 of the Criminal Justice and Courts Act 2015 by the PSQB team, Judy Dawson discusses the recent case of Sudhirkumar Patel v Arriva Midlands Limited and Zurich Insurance Plc [2019] EWHC 1216.
Section 57 of the Criminal Justice and Courts Act 2015 states that the Court must strike out a claim which contains a claim for personal injury when it finds that a Claimant has been fundamentally dishonest in relation that claim, unless the Court finds that to do otherwise would cause the Claimant to suffer substantial injustice. There has been an increasing number of cases dealing with the interpretation of this section, initially in the fast track arena and latterly in the case of more high value claims.
The facts
Mr Patel was struck by the First Defendant’s bus. He sustained a cardiac arrest at the scene and was resuscitated after four minutes. Unsurprisingly he spent 3 days in intensive care, several weeks in a general ward and thereafter over a month on a rehabilitation unit.
The Claimant’s and Defendant’s expert both examined the Claimant at his home about a year apart. Both found him in an essentially catatonic state, mute and unresponsive, seemingly bedridden. Both agreed that there was no organic cause for such state and that he was either suffering a severe conversion disorder or was faking it, the Claimant’s expert opining that it was the former, the Defendant’s expert stating that he was unable to say which. Both agreed that a necessary condition for such diagnosis would be the consistency of such a state; both were informed by one of the Claimant’s sons that this was his consistent state.
However midway between the two examinations the Defendant had commissioned some surveillance which showed the Claimant leaving his house, visiting tyre centres, communicating with others in an apparently normal manner and walking around, even carrying tyres. The Defendant’s expert on sight of the video evidence, amended his conclusion and was able to conclude that this was a case of deliberate feigning of disability, assisted by his son (who was both Litigation Friend and had provided accounts to both experts of his Father’s alleged on-going condition).
Progression and procedure
After the conclusion of the liability trial (where the Defendant had successfully defended an application by the Claimant for his costs to be paid on an indemnity basis and furthermore had successfully applied for an adjournment of the consideration of the costs order given the contents of the Amended Defence), case management directions were made. A trial on quantum was awaited (the schedule of loss and damage remaining both extremely lengthy but substantially uninformative with almost every head of loss marked “TBC”) and additional directions were made in relation to additional evidence to be served on behalf of the Claimant and any additional medical evidence from his expert (the only report thus far being the original one). After such time for additional medical evidence had passed (without the Claimant serving an updated report from his expert) the Defendant served an application that the claim should be struck out pursuant to section 57 which was heard before HHJ Clarke in April 2019.
The law
Section 57(4) states that in dismissing the claim, the Court must record the amount of damages that would have been awarded had it not been for the striking out of the claim. In fact, section 57(5) confirms the need for such assessment given that the Court has to deduct such amount such amount from the costs to be ordered to be paid by the Claimant to the Defendant. The application was primarily defended on the basis that it was not appropriate for the Court to make such a finding at an application hearing, that section 57 was confined to being dealt with after the quantification of the claim, and that it was not possible for the Court to properly assess the quantification of the “honest” part of the claim, not least because there was no proper Schedule before the Court or witness evidence dealing with, for example the care claim. (That was not to suggest that the dishonesty was admitted; the Claimant’s son explained that there may have been a failure of communication and he had been eager to emphasise to the medico-legal experts the seriousness of his Father’s condition and that it was not being given proper consideration (in his opinion) by medical experts).
HHJ Clarke disagreed that it was inappropriate to decide such application. She held that section 57 was very clearly framed to impose a condition that the Claimant’s entitlement to damages had to have already been established (section 57(1)(a)) and had Parliament intended that the assessment of damages had to also have taken place, that condition would also have been included. It was not. She held therefore that such an application could be made at any time after liability had been concluded, however agreed that the Court would have to look very carefully as to whether it should be considered, given that effectively it meant that the assessment of damages would take place on a summary basis. She stated that the question to be considered was whether there were real grounds for believing that further investigation would add to or alter the evidence in relation to the issues that needed to be determined.
The Claimant’s Counsel submitted that a further three experts needed to be called (albeit no reports had been presented or application made to rely on such evidence in the year prior to the hearing throughout which the Claimant was aware of the application). The Judge noted that the only diagnosis placed before the Court by the Claimant had been of a conversion disorder, that the evidence in relation to that was clear, and that it would be unnecessary and disproportionate to allow full quantification of the claim.
HHJ Clarke summarily assessed the value of the Claimant’s genuine claim as £5,750 for general damages. She could not assess special damages due to the defects in the Schedule; the Claimant could not rely on his own failings to contend that it was unfair that such claim could not be quantified. The claim of £5,750 was struck out under section 57.
Discussion
It will be rare that there will be such a stark set of facts and evidence that a Judge will be prepared to allow such an application in these cases. The Claimant’s difficulty in this case was that his reliance on the time-honoured defence of “good days and bad days” did not afford him any comfort given that both experts had already stated that the diagnosis of a conversion disorder was dependent on consistency of such presentation. In many claims of this nature, (particularly when the Claimant’s solicitors have come off record which had not occurred in the present case), it is intensely frustrating to those acting for the Defendant to have to undertake an expensive trial on quantum with oral evidence from medico-legal experts having to be called, when the result appears almost inevitable (and there is little chance of obtaining any financial recompense from an impecunious Claimant). It will be interesting to see whether there follows any committal applications in relation to the dishonest Claimant and those of his witnesses who acted dishonestly in supporting his case.
Judy Dawson is part of the PSQB fraud and personal injury teams and specialises in cases in which fundamentally dishonesty is to be considered or alleged.
Contact Judy’s clerks:
Francine Kirk on 0113 202 8605