Some early indications of fundamental dishonesty interpretations – Nama v Elite Courier Company  – and a comment on Facebook Evidence.Judy Dawson
Judy Dawson of Park Square Barristers Fraud Team, based in Yorkshire discusses the loss of QOWCS protection in fundamental dishonesty cases, with a commentary of the ongoing and evolving use of Facebook Evidence.
We are all getting used to the new regime of QOWCS and the Courts are beginning to grapple with CPR 44.16(1); “Orders for costs made against the Claimant may be enforced to the full extent of such orders with the permission of the Court where the claim is found on the balance of probabilities to be fundamentally dishonest”.
The Nama case
In Nama_v_Elite_Courier_Company_Ltd, the Court was faced with a relatively run of the mill case where two parties had diametrically opposed versions of the accident circumstances (on a roundabout) and therefore with whom liability for such accident lay. It is perhaps important to emphasise that the DDJ found that whilst there were inconsistencies in the evidence of the Claimant such were not such as to make the claim “fundamentally dishonest” in itself. I suspect that there will be few cases where Judges will find that Claimants have been dishonest as opposed to mistaken in their account of accidents, however much their evidence differs from that of the Defendant and however much the Court finds that their evidence turns out to be incorrect. A Judge would have to be sure that a Claimant had been wilfully dishonest rather than however recklessly and blindly mistaken before the QOWCS protection will be removed.
In the Nama case however there was another element, which perhaps unfortunately is not that rare in such cases. Those of us who practise in the area of fraud will often see a mysteriously fortuitous independent witness supporting one side or the other, which the other side is adamant was not present at the scene and on closer investigation are found to be linked to the party they are supporting. The adversarial nature of the system and the difficulties presented to a Judge with two seemingly intractably opposed versions of events emanating from the two parties result in the so-called independent witness being a very powerful weapon (indeed one suspects that few cases get to Court if one side has such assistance) and, it being such a powerful weapon, its misuse must always be sanctioned.
Dr Nama relied on the disclosure of a witness statement by such a witness; as often occurs by the time of the trial of this matter, such witness had apparently disappeared with the Claimant serving a Civil Evidence Act Notice to rely on such evidence as the witness had apparently lost contact with her solicitors. In this case there was a further twist; both parties in fact agreed that the witness was at the scene of the accident (and therefore it was not alleged that this was wholly manufactured evidence) however whilst the Claimant said he was a wholly independent pedestrian, the Defendant’s driver stated that he had emerged from the front passenger side of the Claimant’s vehicle after the accident and was in fact her passenger. His independence was therefore strongly in dispute (with the result that if he was found not to have been in the vehicle, both his statement and that of Dr Nama would be inevitably found to have been deliberately dishonest on this issue).
The Defendant was able to show Facebook evidence that the Claimant and the witness had been Facebook Friends for years and in the context of the accident, the Judge found that the witness had indeed been the Claimant’s front seat passenger at the time of the accident.
I pause there to dwell on Facebook evidence as it is increasingly utilised by parties to demonstrate friendship or links and Judges are, correctly in my view, cynical of such evidence establishing such links. Facebook “friendship” has grown out of all recognition of the original meaning of the term. Those using Facebook will regularly expand their “friendship” circles to include friends of friends, and then friends of those twice-removed friends. Evidence is being presented suggesting that somebody has a personal knowledge of 200, 500, even in excess of 1,000 people which is unrealistic. The evidence has to be seen in context. I suggest such evidence is screened properly for evidential significance;
- How many friends have each of the relevant people got; if it is under 100 the link becomes evidentially significant, if it is under 50 far more so.
- Is there any further evidence of friendship other than the mere facts of the “friends” status? Postings on the wall (even if the comment itself is devoid of extra assistance) catapults the status up the evidential rankings, as does (obviously) photographic evidence.
- Is there a further circumstance or context which adds significantly to the status? If you have two vehicles full of people of similar ages from a certain area having a collision in or near to that area, it is highly likely they will move in sufficiently similar circles to be included in that very wide circle of “Facebook friends”. It is evidentially insignificant. However somebody living in a different area of the country is unlikely to be a Facebook friend AND have a random collision with somebody.
It was the latter contextual point that persuaded the Judge in the Nama case. The independent witness appeared to be an Iraqi engineer (like the Claimant) and she was able to point to the fact that, having won an award, she had been contacted by a lot of like-minded engineers via Facebook to congratulate her, even though she had no personal knowledge of them. However the chances of such person, who lived in Birmingham, being present on a busy London roundabout (having avoided the use of the pedestrian subway) to witness the accident of the Claimant, was so highly unlikely that it could be discounted.
Unsurprisingly, the Claimant lost the case (it is right to state that the Claimant’s false claim that he had not been in her car, whilst being, one would have to imagine, fatally damaging to her credibility, was not said by the DDJ to have influenced his decision as he ruled that on other evidence the Claimant’s case was fatally flawed) and the Defendant requested permission for CPR 44.16(1) to take effect such that it could displace the presumption of QOWCS. The Court granted such permission, holding that the manner of such manufacture of evidence (albeit not complete manufacture in that the alleged witness was in fact at the scene just in a wholly different context) was such that it did render the claim “fundamentally dishonest”. The DDJ quoted and endorsed the judgment in Gosling v Hailo Screwfix Company 
“The corollary term to “fundamental” would be a word with some such meaning as “incidental” or “collateral”. Thus, a claimant should not be exposed to costs liability merely because he is shown to have been dishonest as to some collateral matter or perhaps as to some minor, self-contained head of damage. If, on the other hand, the dishonesty went to the root of either the whole of his claim or a substantial part of his claim, then it appears to me that it would be a fundamentally dishonest claim: a claim which depended as to a substantial or important part of itself upon dishonesty”.
To be honest, it is difficult to see clearly a dicta which explains why stating that someone at the scene was an independent witness, rather than a friend and passenger of the party, renders an entire claim “fundamentally dishonest”. In the real world, perhaps the question is more straightforward and I wonder whether it is time to reinvigorate the whole concept of the abuse of the process of the court; has the Claimant acted in such a way that he or she has abused the process (by lying, exaggeration etc) such that she or he should not be offered such costs protection as has been afforded to genuine parties.
At University I poured over dictas of the late great Lord Denning MR with increasing frustration until a kindly professor pointed out my mistake. Lord Denning often started his judgments with quotations from the Bible or Shakespeare; this was because he had no other precedent or dicta to rely upon. To the confusion of students he started the premise with what was the right (moral) decision and then worked backwards from there, twisting the law if necessary to fit it. It may be easier if these decisions are viewed in the context of the great equitable doctrine – those who come for justice must do so with clean hands. The dirty handed Claimant, be they manufacturing evidence, supporting a further false claim of another, or exaggerating their own claim, cannot expect the Court system to reward them.
Judy Dawson is one of the leading members of the Park Square Barristers Fraud Team specialising in claims involving organised fraud rings. Judy is highly recommended and provides ‘frank and clear advice on matters, not sugar-coating when a case is weak.’ – The Legal 500 (2015).