Mr Andrew Jenkinson v Mr Gary Robertson
| Jurisdiction | England & Wales |
| Judge | Mr Justice Choudhury |
| Judgment Date | 31 March 2022 |
| Neutral Citation | [2022] EWHC 756 (Admin) |
| Docket Number | Case No: PR10/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 756 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN MANCHESTER
Manchester Civil Justice Centre
1 Bridge Street West, Manchester, M60 9DJ
Mr Justice Choudhury
Case No: PR10/2020
Matthew White (instructed by Brian Barr Solicitors) for the Appellant
Pascale Hicks (instructed by DWF LLP) for the Respondent
Hearing date: Friday 21 January 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Hon.
This is an appeal against the judgment of HHJ Christopher Dodd (“the Judge”) that the Appellant (to whom I shall refer as “the Claimant” as he was below) was fundamentally dishonest in advancing his claim of personal injury with the result that his claim was dismissed in its entirety pursuant to s.57(2) of the Criminal Justice and Courts Act 2015 (“the 2015 Act”).
Background
The Claimant sustained personal injury in a road traffic accident which occurred on 24 July 2013. The Defendant, who was the driver of the other vehicle involved, accepted liability. The dispute between the parties at trial was as to causation and quantum. The Claimant's case was that he sustained multiple injuries in the accident, including fractured ribs, and soft tissue injuries to his knee, cervical spine, lower back and abdominal wall. One particular injury alleged was described as “soft tissue and bone injury to mid back engendering the development of Schmorl's nodes (at T12) and permanent symptoms of pain and related disability worsening over time” (“the mid-back injury”). The Defendant accepted all of the injuries (all of which had resolved within 30 months of the accident) save for the mid-back injury which was said by the Claimant to be ongoing.
The principal issue between the parties at trial was therefore whether there was any causative link between the accident, the mid-back injury and the development of a Schmorl's node or indeed any persisting thoracic pain symptoms.
The Judgment Below
The court received expert evidence on the matter from two consultant orthopaedic surgeons: Mr Ampat (called by the Claimant, who represented himself at trial) and Mr Braithwaite (called by the Defendant). Both agreed that if the court were to find a reasonably close temporal relationship between the accident and the onset of thoracic spinal pain then a causal link would be likely. However, if the court were to find that there was a significant delay between the accident and the onset of thoracic spinal pain then there may be no causal link. Mr Braithwaite was of the view that the onset of pain would have to have been within a few days of the accident for there to be a clear causal link.
The Judge considered the Claimant's evidence as to the onset of symptoms and also a substantial quantity of contemporaneous documentation, including GP and hospital records. Whilst the Claimant impressed the Judge as an “apparently sincere, pleasant individual who had fully mastered the details of his case” and who had made some concessions in giving evidence, he was found “on one issue [to have] demonstrated a willingness to manipulate the evidence to his perceived advantage”: [25] and [26]. That evidence concerned a radiological report produced by a Dr Young (“the Young report”); the Claimant was found by the Judge not to have been entirely straightforward with the Court about his reasons for not disclosing that report until directed to do so. I shall return to the circumstances of that apparent non-disclosure below.
The Judge also found that the Claimant had no good answer to the questions put to him as to the absence of any mention of back pain in many of the contemporaneous medical records ([30]).
The Judge concluded that the Claimant's assertion that he had suffered from significant mid and/or low back pain since the accident was “simply not supported by the totality of the contemporaneous and other documents” ([45]), and that it was “overwhelmingly likely that the Claimant's recollection of the origin and development of back symptoms has become, to say the least, unreliable” ([55]). Accordingly, the Judge concluded, on the balance of probabilities, that the requisite temporal nexus between accident and the onset of symptoms was not made out and that the Claimant had failed to prove his claim in that regard ([57]).
The only injuries sustained were found to be those that had been admitted by the Defendant. Taking account of the effects of psychological injury (which the Defendant had also accepted), quantum was assessed in the sum of £14,000 ([68]). That is to be contrasted with the total sum claimed in the Claimant's final schedule of loss, which was in excess of £500,000. Much of that large sum comprised future losses based on the Claimant's alleged inability, as a result of his continuing back injury, to engage in the maintenance of his property portfolio and to derive profits from the sale of renovated properties.
After the close of evidence and in the course of closing submissions, Counsel for the Defendant, Ms Hicks, invited the Judge to find that, on the balance of probabilities, the Claimant had been fundamentally dishonest in bringing his claim, thereby triggering the provisions of s.57 of the 2015 Act. Those provisions (set out below) require that where the court finds that a claimant is entitled to damages but finds that the claimant has been fundamentally dishonest in relation to the primary or a related claim, it must dismiss the entire claim unless it is satisfied that the claimant would suffer substantial injustice.
Having referred to some case law on dishonesty and fundamental dishonesty, the Judge concluded as follows:
“74. Applying this test, I must decide on the balance of probabilities whether the claimant in this case:
(a) has advanced his case dishonestly, or
(b) sincerely but mistakenly believes that he has had significant (and even severe) thoracic pain ever since the 2013 accident.
75. When giving evidence, the claimant had every appearance of sincerity. However, a number of features of his case have caused me to doubt that sincerity:
(a) his first schedule of Special damage included the assertion that he paid someone to collect rent on his behalf £15 per hour for 50 hoursper year; when cross-examined, he had to concede that he had done no such thing; that schedule had been signed by the claimant himself;
(b) I have already referred to his attempted manipulation of expert evidence – it was clearly and persistently dishonest;
(c) when presented with multiple medical records contradicting his case …, his reaction was not to reconsider or moderate his claims but rather to redraft the proceedings with a view to multiplying the size of damages claimed by 10.”
76. I cannot find, on the balance of probabilities, that the Claimant, an intelligent man, sincerely believes the account of his symptoms that he has put before the Court. He has, I am afraid, been fundamentally dishonest in advancing the Claim.”
Accordingly, the Claimant's claim was dismissed and he was ordered to pay the Defendant's costs (save to the extent of damages that the court found would otherwise have been awarded to the Claimant and a further sum of £1000 awarded against the Defendant for failure to engage in a Joint Settlement Meeting).
The Judgment was handed down on 9 October 2020. At the hand-down hearing, the Judge, having considered submissions made by the Claimant, corrected some material errors in the Judgment. These corrections are only apparent from the transcript of the hand-down hearing, as the copy of the Judgment provided on appeal has not been amended to reflect the corrections. I shall refer to these corrections where relevant below. The Judge did not revisit any of his conclusions in relation to fundamental dishonesty in light of those corrections.
The Grounds of Appeal
The Grounds of Appeal, which were drafted by the Claimant, were wide ranging; they took issue with most of the conclusions reached by the Judge including those as to quantum and fundamental dishonesty; and alleged that there had been a procedural irregularity in the preparation of the trial bundle.
The grounds were considered by Fordham J on the papers. In a detailed written decision, Fordham J refused permission to appeal against the assessment of quantum. However, permission was granted in respect of the appeal against the conclusion that the Claimant had been fundamentally dishonest, Fordham J finding that it was properly arguable with a real prospect of success that the Judge's findings in this regard were wrong and/or vitiated by procedural unfairness “especially in light of materials which the Judge did not have and which the Defendant – arguing fundamental dishonesty for the first time at trial against a litigant in person – did not ensure the Judge was made aware of”.
The Claimant is now represented in this appeal by Mr White of Counsel, who has encapsulated the grounds of appeal being pursued as follows:
i) Ground 1 — As a matter of procedural fairness, the Claimant was not given sufficient notice of, or opportunity to respond to, allegations of fundamental dishonesty.
ii) Ground 2 — The Judge wrongly reversed the burden of proof, effectively requiring the Claimant to prove that he had not been fundamentally dishonest.
iii) Ground 3 — The...
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