David Pinkus v Direct Line
| Jurisdiction | England & Wales |
| Judge | Coe |
| Judgment Date | 02 July 2018 |
| Neutral Citation | [2018] EWHC 1671 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ15PO3265 |
| Date | 02 July 2018 |
[2018] EWHC 1671 (QB)
HHJ Coe QC SITTING AS A JUDGE OF THE HIGH COURT
Case No: HQ15PO3265
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr M Grant (instructed by NewLaw Solicitors) for the Claimant
Mr Audland QC (instructed by DWF LLP) for the Defendant
Hearing dates: 29 th, 30 th, 31 st, January 1 st, 2 nd, 5 th, 6 th February and 26 th March
| Sections | Paras |
| The Claim | 1–3 |
| The Claimant's capacity to litigate | 4 |
| The Defendant's pleaded case | 5 – 16 |
| Mr Slater's previous convictions and the late-served statements | 17 – 21 |
| Approach to the evidence | 22 – 30 |
| Background/pre-accident situation | 31 – 41 |
| The accident | 42 – 53 |
| Since the accident | 54 – 91 |
| Treating clinicians | 92 – 106 |
| Expert witnesses | 107 – 142 |
| Discussion and analysis: | |
| (i) Credibility, symptoms and diagnosis | 143 – 178 |
| (ii) Employment | 179 – 183 |
| Fundamental dishonesty | 184 – 209 |
| Conclusion | 210 |
HHJ Coe QC:
The Claim
This is the claimant's claim for damages for personal injury arising out of a road traffic accident which occurred on 21 August 2012. Liability for the accident has been admitted in full. It occurred on the M4 motorway as the defendant's insured, Mr Pavel Khodak's vehicle moved into the fast lane and into collision with the claimant's vehicle.
It is the claimant's case that he has suffered significant psychological/psychiatric symptoms in consequence of the accident as well as minor physical injury. The diagnosis on which he relies is of post-traumatic stress disorder (“PTSD”) with dissociative symptoms. It is his case that this was a terrifying accident of such a nature as to trigger the PTSD. He says that he lost his job a few weeks later because of the effect of the accident on his performance. He has not worked since apart from somewhat unsuccessful attempts at short-term decorating contracts. He has had a great deal of treatment. His relationships with his family have been significantly adversely affected. He has ongoing difficulties with everyday functioning. His symptoms have worsened over time. His past and future financial loss claim is in the region of £850,000.
It is the defendant's case that Mr Pinkus sustained minor physical injuries in the accident and some short-lived travel anxiety/adjustment disorder which resolved by early 2013. They dispute that the accident was of such severity as to cause PTSD. They contend that the claimant's claim is exaggerated/fabricated. Any subsequent psychiatric symptoms which I find to be genuine are, on a balance of probabilities due to depression probably caused by the claimant's family difficulties. The defendant say that the claim is worth no more than £2–3,000 and further, that if I find that the claimant has fabricated/consciously exaggerated his symptoms I should find him to have been fundamentally dishonest within the meaning of s.57 Criminal Justice and Courts Act 2015 and dismiss the claim altogether.
The claimant's capacity to litigate
On 31 st January after the first day on which the claimant began to give evidence I gave a ruling on this issue and appointed Mrs Pinkus to be his litigation friend. Attached to this judgment is my ruling (as amended and approved). For the reasons set out below, having heard all the evidence and reached my conclusions, I find that the claimant does have the capacity to litigate and I revoke the order appointing a litigation friend.
The Defendant's pleaded case
A preliminary matter was raised as to whether or not the defendant should be entitled to rely upon their allegations of fundamental dishonesty where the claimant contends that their pleading of the issue was not only late but inadequate. The defence (dated 21.12.15 at 1.105) makes no admissions as to any injuries and indicated the defendant would seek their own medical evidence. It denied that the claimant suffered any diffuse brain injury. Rotational/contre coup forces and/or that the claimant knocked his head are denied, He is put to strict proof of the alleged loss and damage. By the updated counter-schedule dated 11.1.18 (only signed with a statement of truth on the first day of trial) the defendant pleads fundamental dishonesty and sets out some details of the arguments, putting the claimant's credibility, honesty and reliability in issue.
This pleading (see 1.24) gives details and particulars, but, as the claimant points out, also refers to matters “to be explored in cross-examination” and contains the phrase in one respect “for example”. The claimant says this indicated that there would be other matters which the defendant may rely upon which have not been detailed and therefore the pleading is defective. Further the pleading refers to matters which may arise in cross examination which were not detailed and again the claimant says this is inadequate.
The claimant referred me to the speech of Lord Millett in the case of Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC, stating that “It is well established that fraud or dishonesty…must be distinctly proved; that it must be sufficiently particularised… The function of pleadings is to give the party opposite sufficient notice of the case which is being made against him… this involves knowing not only that he is alleged to have acted dishonestly but also the primary facts which will be relied on at trial to justify the inference…this is only partly a matter of pleading. It is also a matter of substance”.
The defendant referred me to the case of Howlett v Davies [2017] EWCA Civ 1696 where the Court of Appeal (see para. 25 et seq.) considered whether a trial judge can find fundamental dishonesty sufficient to displace QOCS without fraud having been alleged in terms in the defence. Newey, LJ. felt that the Three Rivers decision (amongst others) was of limited assistance, in particular because it related to what a claimant rather than a defendant must plead and prove. In brief, other previous decisions were distinguished because in those cases, the thrust of the allegations of dishonesty were not put at all or were a finding of the trial judge without input from the advocates. At para. 31 Newey, LJ said “…the mere fact that the opposing party has not alleged dishonesty in his pleadings will not necessarily bar a judge from finding a witness to have been lying: in fact, judges must regularly characterise witnesses as having been deliberately untruthful even where there has been no plea of fraud …[and] following the guidance given in Kearsley v Klarfield [where a claim is denied] without putting forward a substantive case of fraud, but setting out “the facts from which they would be inviting the … inference that the plaintiff had not in fact suffered the injuries he asserted” it must be open to the … judge, assuming the …points have been adequately explored during the oral evidence, to state….he has concluded (say) that the alleged accident did not happen or that the claimant was not there”.
He went on (para. 32) to say that an insurer could invoke CPR 44.16(1) regardless of whether or not there was any reference to fundamental dishonesty in its pleadings. In Howlett counsel for the defendant accepted that he had not used words such as “fraud” or “dishonest” in cross-examination but had said things like “that is not true”, so that the claimants knew what they were facing and that that was sufficient for the District Judge to have been free to make the finding of fundamental dishonesty.
From the outset (as set out in the defence) the defendant in this case has denied that the accident occurred as the claimant says and put causation and quantum in issue. In light of the defendant's stance and, in particular, for example their use of surveillance it has been apparent throughout that the claimant's credibility was in issue. The stark contrast between the way that he and the defendant value the claim has been known to the claimant throughout. His symptoms have been difficult for any of the experts to explain and the defendant have identified him as either consciously or unconsciously exaggerating. I note that the skeleton argument prepared on behalf of the claimant for the hearing in front of Master Eastman on 19.1.18 set out “The credibility, honesty and reliability of the claimant are in issue”. The issue of fundamental dishonesty is not therefore new although it has not been specifically particularised in the pleadings, until the updated counter-schedule.
An allegation of fundamental dishonesty is a serious one with significant consequences. There are costs consequences which can be swingeing. A claimant found to have been fundamentally dishonest runs the risk of contempt proceedings and losing his or her liberty. Following the introduction of s.57 Criminal Justice and Courts Act 2015 even where there is a valid claim, a finding of fundamental dishonesty can cause a claimant to lose the claim in its entirety. In the same way, of course, that there are these significant consequences for a claimant, there are significant benefits to a defendant who can establish such dishonesty.
At the beginning of the trial the claimant applied for a ruling that the defendant should not be allowed to run their case on conscious exaggeration, malingering and fundamental dishonesty. I gave an extemporary ruling allowing the defendant to run these arguments. I expand the ruling now to say that I find that in the circumstances of this case the principles set out by Newey LJ in Howlett apply in preference to the principle enunciated in Three Rivers. At the beginning of the trial the claimant had known “what he was facing” for some time. He knew he had been subject to surveillance. He knew there were...
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