Cojanu v Essex Partnership University NHS Trust [2022] EWHC 197 (QB)
Mr Cojanu, the Claimant, arrived in prison in need of surgery. His injuries, deep cuts to his fingers, were sustained when he attacked his wife with a knife – the very incident which landed him in prison in the first place. A date for surgery had already been set, but the Defendant cancelled it when he was imprisoned, and delayed arranging a new date.
The Defendant was found to have been negligent because of the delay, subject to defences ([26]). The key plank in the defence, and the issue on which this piece is focussed, was the argument that the Claimant had been fundamentally dishonest. His stated case was that his injuries were sustained in self-defence when his wife attacked him, whereas in fact he had been convicted of her murder ([16]).
Fundamental dishonesty is a statutory defence in personal injury claims, introduced in the Criminal Justice and Courts Act 2015, the purpose of which is, in brief, to deprive especially dishonest claimants of even the honest parts of their claims, a “penalty… intended as the price of dishonesty” ([38]).
First Instance Decision
The Recorder found that the Claimant had been fundamentally dishonest in several respects ([29]). First, he had made no mention in the pleadings of the true cause of his injury; second, his witness statement describing the altercation leading to his injuries was “very far from the true picture”; and third, he did not mention to experts his conviction for murder.
The Recorder also found that the Claimant had been fundamentally dishonest in his approach to special damages ([34]), giving a “grossly inflated” figure for loss of earnings, relying on English wages rather than the lower Romanian equivalent he would in fact be earning ([32]), and rejecting a submission that this was merely an error by the Claimant’s lawyers ([31]).
Having found the Claimant to have been fundamentally dishonest, the Recorder dismissed the claim under s. 57, CJCA 2015.
The Appeal
The High Court first considered the law relating to the fundamental dishonesty defence (see [38] – [53]). The key question was what was meant by fundamental dishonesty.
There had been some suggestion, for example in Howlett v Davies [2017] EWCA Civ 1696 that the phrase was to be interpreted purposively, and fundamental dishonesty meant (in the context of Qualified One Way Cost Shifting) dishonesty which divested the Claimant of his entitlement to costs protection. This was compared with merely incidental or collateral dishonesty.
More recently, in London Organising Committee of the Olympic and Paralympic Games (in liquidation)) v Sinfield [2018] EWHC 51 (QB); [2018] PIQR P8, the High Court said that fundamental dishonesty was that which “substantially affected the presentation of the case, either in respects of liability or quantum… by potentially affecting the defendant’s liability in a significant way”. This significance was to be judged in relation to the claim as a whole, rather than in relation to the defendant in general (so that dishonesty relating to £9,000 of a £10,000 claim against a multi-billion pound turnover insurer was still significant).
Setting out five steps gleaned from the case law, the Court gave the following useful summary at [47]:
“(i) the section 57 defence should be pleaded; (ii) the burden of proof lies on the defendant to the civil standard; (iii) a finding of dishonesty by the claimant is necessary (more on this below); (iv) as to the subject matter of the dishonesty, to be fundamental it must relate to a matter fundamental in the claim. Dishonesty relating to a matter incidental or collateral to the claim is not sufficient; (v) as to the effect of the dishonesty, to be fundamental it must have a substantial effect on the presentation of the claim.”
The “more below” on dishonesty was to clarify that the test of dishonesty was that set out by the Supreme Court in Ivey v Genting Casinos [2017] UKSC 67; [2018] AC 391 (i.e. that the test of dishonesty is an objective one applied to the defendant’s, or here the claimant’s state of mind at the relevant time – see [49]).
Applying the law to the Claimant’s appeal, the Court found that while he had clearly been dishonest ([56]), his dishonesty was not fundamental ([57]), because “the mechanism by which the claimant received his cut was irrelevant to the success of the clinical negligence claim. The claimant did not need to prove how he was cut to win the civil action”. This made it merely incidental or collateral to the claim ([61]).
The Court also found that the impact of the dishonesty on the quantum was minimal ([68]). Accepting the Claimant’s contention that it was a lawyer’s mistake, it was observed that nowhere in evidence had the Claimant actually indicated an intention to rely specifically on English wage figures ([79] – [80]). On this and similar issues, the Recorder had failed to properly apply the Ivey v Genting test, ignoring the Claimant’s state of mind in his assessment of dishonesty ([88]).
The Court therefore allowed the appeal, overturning the Recorder’s finding of fundamental dishonesty ([94] – [94]).
Comment
Fundamental dishonesty arises most frequently by numbers in road traffic accident cases, but as the Court on appeal observed, it could, if given an unduly wide interpretation, serve to bar otherwise properly brought claims on the basis that the claimant is found to have lied about matters unrelated to facts actually pertinent to the claim.
This case gives a useful and easy to apply test: was the dishonesty necessary in order to bring the civil claim, or to reach the level of quantum sought? If not, it is not fundamental. If it is, the Court’s task is somewhat more complex, but still tolerably clear. It must decide if the effect was substantial.
The case is also a useful reminder of the importance of taking care in assessing dishonesty. Where the Ivey v Genting test is not applied rigorously, the Court risks falling into error.
But the Court’s judgment was not only a useful clarification of the law on fundamental dishonesty which will be useful beyond clinical negligence alone, but also a cogent defence of one of our legal system’s best qualities: a recognition that rights in law are not contingent on personal virtue.
At [65], the Court observed that “all citizens are equally entitled to come before the courts in civil claims”. This must be right. It is one thing for Parliament to craft a punitive or exemplary sanction whereby claimants who intentionally lie about a ground of liability, or inflate the value of their claims, are deprived of the whole claim. It would be quite another (as the Court recognised at [69]) for any person who maintained their innocence, having been convicted of a crime, to be denied the ability to enforce their right to competent medical treatment through tort law.
