The claimant tripped on a paving stone on a canal footpath in Leeds in February 2014. The defendant was unaware that they owned the accident site until the incident occurred and raised a McGeown defence, based on the judgment of the House of Lords in McGeown v Northern Ireland Housing Executive (1994), that the area was in fact a public right of way and that they had not carried out any work to the area.
In the incident, the claimant sustained a fracture to the hip, requiring surgery which left him with a leg length discrepancy. The claimant's orthopaedic expert considered that the fracture had caused ossification, which would lead to a hip replacement in the next 5 years and would require subsequent replacements. In addition, the claimant alleged that he had injured his back in the fall.
The defendant's expert agreed that the claimant had fractured his hip and had been left with a leg length discrepancy. He considered that recovery was incomplete and was unlikely to improve. He did not think the back pain was accident related and believed the claimant could return to work as an osteopath within a year or so of the accident.
The claimant's case was that at the time of the accident, he was a self-employed osteopath, working with both animals and humans. His original schedule of loss pleaded that he was unable to work for 14 months, before then returning part time. He also pleaded that there was a 14-month delay in the progression of his practice as a consequence of the accident. Further, he claimed that if the accident had not happened he would have been working 65 hours per week by October 2014.
However, what the claimant did not disclose, was that he was suspended from practice from the General Osteopathic Council from April 2014 to February 2015, i.e. after the accident, due to a real risk of significant harm to patients because of his chronic alcohol dependence. Thereafter, he was subject to various practising conditions until May 2016. DWF discovered this evidence as a result of enquiries online and served it on the claimant.
The defendant pleaded that other than dishonesty, there was no credible or plausible objective explanation for the claimant failing to declare these interventions. Despite that, the claimant continued to claim past loss of earnings without any reference to the fact he was suspended, and the obvious effect on his earning capacity in 2014/2015.
The claimant updated his schedule of loss, this time referring to the suspension, but rather than reducing the figures claimed, they in fact jumped from £347,000 to £6.6 million. The claimant contended that notwithstanding his suspension he still could have carried out work providing alternative therapies. The claimant now pleaded that but for the accident he would have worked 65 hours a week to the age of 80. His loss of earnings claim totalled £6,549,700: the bulk of the claim.
The defendant pleaded in response that the schedule was fundamentally dishonest under s.57 of the Criminal Justice and Courts Act 2015 and/or CPR r.44.16, and argued that the massive claim for loss of earnings was 'fundamental' to the overall value of the claim presented. With reference to Ivey v Genting Casinos UK (2017), we set out the relevant objective test:
"Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective."
Applied to the facts in this case, even if therefore the claimant considered his loss of earnings to be meritorious, judged objectively, the defendant believed that he was being deliberately reckless and dishonest in his presentation of his claim to the court.
In support of the defendant's position, we highlighted that the claimant had provided no supportive statements, either from patients confirming they would have been happy for him to treat them whilst suspended, or from colleagues. The claimant supplied no evidence of bookings, lost appointments, testimonials or work diaries despite numerous requests; this ultimately resulted in an application for specific disclosure.
The General Osteopath Council records indicated that the claimant was working shortly after the accident (and before his suspension) which, the defendant stated, demonstrated that physically the claimant was able to work.
Crucially, the claimant maintained the claim for past loss of earnings of £14,000 during the period between 2014 and 2015 in which he was suspended. We pleaded that this was dishonest.
Based on the claimant's minimal disclosure of tax returns as compared to his own accounts we pleaded also that the claimant had made a false declaration to HMRC.
The defendant further argued that the claimant had misled his expert regarding his suspension and alcoholism.
The claimant's third schedule of loss presented a new head of loss, namely the prescription of orthotics fees claimed at a further £1.2 million. No evidence or documents were supplied in support, and the claimant's witness evidence was completely silent on this alleged loss. The claimant's own expert did not support any restriction in work activity.
We concluded that this reflected the dishonest intention of the claimant to willingly manufacture new heads of loss to inflate the value of the claim in order to pressurise the defendant to settle.
Under pressure from the arguments outlining fundamental dishonesty set out in the counter schedule, and a month before trial, the claimant accepted a nuisance offer of £25,000. This represented 0.3% of the value of his claim according to his most recently served schedule of loss.
An interesting aspect to this case was that liability remained in dispute throughout. Section 57 is of course engaged once the claimant becomes entitled to damages. Therefore, we were precluded from making any interim application under s.57, as there was no such entitlement to damages at the time.
If the claimant had not accepted the offer, then the defendant could have admitted primary liability in order to make an application under s.57 at the start of trial. If liability had remained in dispute, then the defendant would have had to wait for the judge to find an entitlement to damages before making a s.57 application or before seeking a finding under CPR r.44.16 at the end of the trial.
Given the unpredictable nature of any trial and the presence of the "genuine" element of the claim, the conclusion of the matter on these terms represented a very successful outcome for the defendant.
It is clear that as the matter neared trial, and reflecting on the damages claim advanced, the claimant was perturbed as to the high risks involved from the potential for a finding of fundamental dishonesty and was willing to settle for a nominal sum. Even claimants presenting substantial claims are not immune from the risks involved from the potential of a finding of fundamental dishonesty.
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