Issue 39 October 2021 - Journal - Page 78
Dishonest Claim, Dishonest
Claimant, is there a Difference?
Is there a difference between a fundamentally dishonest claim and a
fundamentally dishonest claimant in the context of Section 57 of the
Criminal Justice and Courts Act?
Michael v IE&D Hurford Ltd (t/a Rainbow) 
EWHC 2318 (QB)
In his influential judgment, Mr Justice Knowles in
LOCOG v Sinfield acknowledged that “it will be rare for
a claim to be fundamentally dishonest without the claimant
also being fundamentally dishonest, although that might be a
theoretical possibility, at least.”
First instance decision
The Claimant was involved in a road traffic accident in
2018. It was not disputed that the collision occurred,
but three heads of loss remained in dispute: credit
hire, physiotherapy, and the value of the injury claim.
The statements of case consisted of the Particulars of
Claim, Defence and Reply to the Defence.
This theoretical possibility was recently addressed in
the High Court decision of Michael v IE&D Hurford
Ltd (t/a Rainbow).
The Claimant’s witness statement stated he was told
he “might benefit from physiotherapy to help aid faster
recovery. I obtained this as I feel that it helped.” The claim
for physiotherapy sought to recover the costs of 8
sessions at £100 each, and “was accompanied by detailed
notes of some 8 treatment sessions seemingly compiled by the
The Defendant appealed a first instance decision
rejecting their application to dismiss the Claimant’s
claim for fundamental dishonesty pursuant to Section
57 of the Criminal Justice and Courts Act. It was submitted that the Recorder should have reached the
“unavoidable and inevitable” conclusion of a finding of
fundamental dishonesty following the Claimant’s oral
evidence at trial. The oral evidence contradicted his
pleaded claim and witness statement.
At trial, the Claimant stated he had only attended one
session of physiotherapy. This was plainly at odds with
the pleaded claim, his witness statement and the
physiotherapist ‘notes’. This evidence was “happily
volunteered” by the Claimant, as was ostensibly inconsistent evidence in respect of his employment history
and credit card statements. Clearly, this was “information that did not assist his claim.”
Dismissing the appeal, the High Court confirmed that
it was open to the lower court to find that “signing an
inaccurate witness statement, statement of case or disclosure
statement” does not automatically lead to a finding of
dishonesty on the part of the Claimant. The first instance court was satisfied that the Claimant was able to
provide an honest explanation for the inconsistencies.
Nonetheless, the Recorder concluded “the [Claimant’s]
oral evidence in cross-examination was honest and accurate
insofar as the [Claimant] could understand what was being
asked of him and remember.”
The discrepancies were explicable on the basis that
the Claimant “did not know or understand the basis of the
claim that the solicitors had advanced on his behalf.” The
Claimant was awarded damages for the successful
element of his claim, and the application for a finding
of Section 57 dishonesty was dismissed.
It is interesting to contrast the test for contempt of
court to that of dishonesty. Contempt of court applies
the test of recklessness, meaning that signing an inaccurate witness statement, statement of case or disclosure statement can result in committal proceedings.
Signing an inaccurate statement might not result in
your claim being unsuccessful but could result in a loss
The appeal could be summarised as a solitary
pleading; that the Recorder was wrong to have found
the Claimant was not fundamentally dishonest and
therefore wrong to dismiss the application under Section 57. The appeal set out five issues which should, in
the submission of the Defendant, have inevitably led
to a finding of fundamental dishonesty. This included
the evidence and statements submitted around the
physiotherapy, credit hire and employment history.
In similar circumstances, how might defendants avoid
circumstances in which a court might find the claim to
be dishonest, but not the claimant? Do decisions such
as Michael open the door to dishonest claimants
blaming their legal representatives for dishonest
The appeal judgment seems to suggest that
defendants be given the opportunity to ‘explore’ potential issues of complicity and collusion between
claimants and their representatives in such circumstances. However, the practicalities of such an exploration within the confines of litigation, were
disappointingly not addressed by the High Court.
EXPERT WITNESS JOURNAL
The appeal was dismissed. Mrs Justice Stacey noted
that the Recorder’s reasoning was full and comprehensive. The challenge to the finding of fact required
a “very clear case” to overturn the first instance decision,
and as the case turned on the credibility of the
Claimant, the appellate courts had to be very cautious
interfering with the finding of fact.
O C TO B E R 2 0 2 1