London Organising Committee of the Olympic and Paralympic Games ((in Liquidation)) v Haydn Sinfield
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 22 January 2018 |
| Neutral Citation | [2018] EWHC 51 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB/2017/0241 |
| Date | 22 January 2018 |
[2018] EWHC 51 (QB)
Mr Justice Julian Knowles
Case No: QB/2017/0241
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
James Laughland (instructed by Kennedys Law LLP) for the Appellant
Mark James (instructed by Pictons Solicitors LLP) for the Respondent
Hearing date: 11 December 2017
Judgment Approved
This is an appeal with the permission of Martin Spencer J by the Appellant, the London Organising Committee of the Olympic and Paralympic Games (In Liquidation) (‘LOCOG’), against the decision of Mr Recorder Widdup at Oxford County Court on 18 September 2017 to award damages to the Respondent, Mr Haydn Sinfield (‘Mr Sinfield’), for personal injuries. Mr Laughland appears on behalf of LOCOG. Mr James appears on behalf of Mr Sinfield.
The case concerns s 57 of the Criminal Justice and Courts Act 2015 (‘s 57’/‘the 2015 Act’) and the power it gives the court to dismiss a claim for personal injuries where the court is satisfied that the claimant has been fundamentally dishonest in relation to the claim. Section 57 provides:
“Personal injury claims: cases of fundamental dishonesty
(1) This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”)—
(a) the court finds that the claimant is entitled to damages in respect of the claim, but
(b) on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.
(2) The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.
(3) The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.
(4) The court's order dismissing the claim must record the amount of damages that the court would have awarded to the claimant in respect of the primary claim but for the dismissal of the claim.
(5) When assessing costs in the proceedings, a court which dismisses a claim under this section must deduct the amount recorded in accordance with subsection (4) from the amount which it would otherwise order the claimant to pay in respect of costs incurred by the defendant.
(6) If a claim is dismissed under this section, subsection (7) applies to—
(a) any subsequent criminal proceedings against the claimant in respect of the fundamental dishonesty mentioned in subsection (1)(b), and
(b) any subsequent proceedings for contempt of court against the claimant in respect of that dishonesty.
(7) If the court in those proceedings finds the claimant guilty of an offence or of contempt of court, it must have regard to the dismissal of the primary claim under this section when sentencing the claimant or otherwise disposing of the proceedings.
(8) In this section—
“claim” includes a counter-claim and, accordingly, “claimant” includes a counter-claimant and “defendant” includes a defendant to a counter-claim;
“personal injury” includes any disease and any other impairment of a person's physical or mental condition;
“related claim” means a claim for damages in respect of personal injury which is made—
(a) in connection with the same incident or series of incidents in connection with which the primary claim is made, and
(b) by a person other than the person who made the primary claim.
(9) This section does not apply to proceedings started by the issue of a claim form before the day on which this section comes into force.”
Mr Sinfield was injured in an accident for which LOCOG admitted liability. By its Amended Defence and following a trial on quantum, LOCOG submitted to the judge that, pursuant to s 57, Mr Sinfield's claim should be dismissed because he had knowingly presented a dishonest claim for damages for gardening expenses which, as originally formulated, represented a substantial part of the claim, and thus that he had been fundamentally dishonest in relation to his claim. The judge rejected LOCOG's application and awarded Mr Sinfield damages. LOCOG appeals against the judge's decision not to dismiss the claim under s 57.
The factual background
The 2012 London Olympic and Paralympic Games were a fantastic festival of sport. The Games captivated the nation and the world that summer. There were thousands of spectators. Many people volunteered to assist them. Mr Sinfield was one such person. Unfortunately, on 9 September 2012 Mr Sinfield was injured whilst volunteering at the Games. The details of the accident do not matter for the purposes of this judgment, save that it involved Mr Sinfield falling on to his left arm and breaking his left distal radius and the ulnar styloid of his left wrist. The injury had some long-term consequences for him in terms of what he could do.
Mr Sinfield brought proceedings for personal injury against LOCOG. On 7 December 2015 he served a Preliminary Schedule of Damages (‘the Preliminary Schedule’). The Preliminary Schedule was verified by Mr Sinfield with a statement of truth, and signed by him: ‘I believe that the facts stated in this schedule are true’. Special damages were claimed under a number of different heads, including for medical expenses, travelling, and a broken watch strap. Of particular relevance to this appeal was the claim by Mr Sinfield for damages in respect of gardening expenses. There were two separate claims: damages from the date of the accident to the date of the Preliminary Schedule; and a claim for future loss. These were in paras 5 and 8 of the Preliminary Schedule, respectively, and I need to set them out in full.
At para 5 the Preliminary Schedule stated:
“5. Gardener
The Claimant has a 2 acre garden. Prior to the accident the Claimant looked after the garden himself with his wife. Post accident his wife continues to do some of the gardening but they had to employ a gardener for 2–4 hours per week at a cost of £13 per hour. Throughout the Winter months the gardener tends to do only 2 hours per week and during the Spring/Summer months this increases to 4 hours per week.”
For the period from 9 September 2012 to the date of the schedule a figure of £4992 plus £79.87 interest was served, making a total of £5071.87.
At para 8 the Preliminary Schedule stated:
“8. Gardening
The Claimant would probably at some point have required assistance with gardening and employed a gardener in any event whilst continuing to do some work himself. Presuming the Claimant's ability to carry out gardening would have reduced as he got older, perhaps managing 2 hours per week initially future gardening is claimed at one hour per week.”
Damages under this head for future gardening losses were claimed at £13 per week, ie £677.86 per year, with an appropriate multiplier of 13.22, producing a figure of £8961.31.
The total value of the claim for gardening was therefore £13953.31 (£4992 + £8961.31), excluding interest. The total value of the special damages claimed was £33 340.86, meaning that the gardening claim represented some 41.9% of the total special damages claim as presented on this Schedule.
In due course, liability was admitted and damages for pain, suffering and loss of amenity were agreed at £16 000. Thus, the gardening claim represented about 28% of the damages claim overall.
In January 2016 LOCOG served its Defence. On 25 August 2016 Mr Sinfield served his List of Documents. That stated:
“I certify that I understand the duty of disclosure and to the best of my knowledge I have carried out that duty. I further certify that the list of documents set out in or attached to this form, is a complete list of all documents which are or have been in my control and which I am obliged under the order to disclose.
I understand that I must inform the court and the other parties immediately if any further document required to be disclosed by Rule 31.6 comes into my control at any time before the conclusion of the case.”
Items 14 – 15 on the List were described as ‘Invoices Mervyn Price – Gardener’ for the periods October – November 2012 and March – November 2013 respectively. Items 16 – 20 were described as ‘Invoices Dan Hardy – Gardener’ for the periods March – November 2014, March – November 2015, March – May 2016, June 2016 and July 2016, respectively.
These invoices thus purported to be from the gardeners who tended Mr Sinfield's garden. To take one of the invoices with Mr Price's name on it as an example, it purports to be an invoice for July 2013 from ‘Mervyn Price, 29 Finsbury Road, Luton, Beds’ in the sum of £208.
In September 2016 a further Schedule of Damages was served by Mr Sinfield maintaining (with adjustments due to the date) the claims for past and future gardening losses. The figure claimed for gardening on this Schedule was £14 785.31, exclusive of interest.
On 17 October 2016 Mr Sinfield served his first Witness Statement. Paragraph 30 was as follows:
“30. Pre-accident Christine and I did all the gardening. We have a 2 acre garden which needs a lot of upkeep. Christine still does some of the garden but it is impossible for her to do it alone and so we now employ a gardener. Over the winter months the gardener only does a couple of hours per week but in the summer months this increases to 4 hours per week.”
In light of the disclosure provided LOCOG made enquiries and located and approached Mr Price, the gardener. A witness statement was taken from him dated 29 September 2016 and he gave evidence at the trial. He said that he had worked for Mr Sinfield and his wife since May...
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