Fundamental Dishonesty and The Role of Experts
O’Connell v Ministry of Defence [2025] EWHC 2301 (KB)
In O’Connell, Christopher Kennedy KC, sitting as a Deputy High Court Judge, dismissed claims in negligence and under the Animals Act 1971 brought by a former gunner in the Royal Horse Artillery. He also found that the claim was fundamentally dishonest.
Background
The Claimant joined the Royal Horse Artillery in October 2014. On 4 September 2015, she was undertaking a horse-riding lesson. She initially started riding horse Narlia. However, she struggled to control her. She was switched to a different horse, Electra Jazz (“Jazz”). The Claimant was then required, along with two other recruit riders, to cross the arena and turn right. The other two recruits proceeded and wrongly turned left. The Claimant turned right, but seeing the other two recruits turn left, thought she had done this in error. She turned Jazz to the left and was bucked off. As a result, she landed on her left shoulder and suffered a comminuted fracture to her left clavicle. This required extensive rehabilitation and several rounds of surgery.
There was no dispute between the parties about the Claimant’s condition until late April 2017. However, from that point, there was significant disagreement. In short, the Claimant’s case was that, despite having recovered orthopaedically, she continues to suffer from chronic pain arising from peripheral nerve injury. This results in hypersensitivity, restricted movement, and weakness in her left arm. In contrast, the Defendant’s case was that the Claimant had recovered and could use her left arm normally or near normally. In support of the Defendant’s contention, they relied inter alia on surveillance footage of the Claimant from 2020 and 2022. As a result, the Defendant alleged that the Claimant was fundamentally dishonest so as to engage s.57 of the Criminal Justice and Courts Act 2015 and/or CPR 44.16.
Liability – Negligence
The Claimant’s case in negligence was that Jazz had bucked her off earlier in the lesson. She was negligently ordered to remount her by the instructor. She also alleged that she had been provided with oversized riding boots, she had not been properly instructed how to use stirrups, and Jazz was not a suitable horse for novice riders. These were causative of the accident. The Defendant’s case was that Jazz had not bucked the Claimant earlier in the lesson. Her riding boots were suitable, she had been properly instructed about stirrups, and Jazz was appropriate for novice riders.
The judge found that the Defendant was not liable in negligence. He held that the Claimant was not bucked earlier in the lesson and ordered to remount. In support of this, he relied on a contemporaneous note about the accident circumstances. This note was made in the presence of the Claimant. In relation to the Claimant’s boots and her instruction about stirrups, the judge took these allegations together. The crux of the Claimant’s allegation was that the boot was too large to fit in the stirrup. The judge found that, although the boots were oversized, they were not so large that they were unsuitable for use in riding lessons. Causation was also not established. The judge particularly relied on the Claimant’s failure to mention that her boots were oversized or failed to fit in the stirrups in the accounts of the accident she provided in 2016. In relation to Jazz’s temperament, after considering all the evidence and hearing from equestrian experts, the judge concluded that she was suitable for novice riders.
Liability – Animals Act 1971
The Claimant’s case under the Animals Act 1971 was that the Defendant was strictly liable under s.2(2). The judge concluded that that s.2(2)(a) was not satisfied. He carefully considered the relevant circumstances, including, but not limited to, the speed of the horse, the size of the horse, the size of the buck, and the surface. Severe injury was not reasonably to be expected from the fall that the Claimant suffered, looking across the statistics about falls from horses. This alone disposed of the claim.
However, the judge went onto consider the other subsections. On s.2(2)(b), the judge favoured the Claimant’s construction. Bucking was a characteristic not normally found in horses and the equestrian experts agreed that the circumstances of the accident were such that a horse would buck. The judge found that the final element, s.2(2)(c), would have been satisfied as the keeper would have known that horses might buck in the circumstances of the accident.
Fundamental Dishonesty
The judge rehearsed the well-known test in Ivey v Genting Casinos [2018] AC 391 and found that the Claimant was dishonest. He concluded that it was fundamental. It went to the heart of her claim (see Denzil v Mohammed [2023] EWHC 2077). He held that: “She has been dishonest in relation to each aspect which I have discussed in order to present a picture that she is materially more disabled than she in fact is” [193]. As a result, he held that it was appropriate to grant permission to the Defendant to enforce any order for costs against the Claimant to its full extent under CPR 44.16, displacing the default QOCS position.
The judge found several material inconsistencies in the Claimant’s evidence. Three key areas relied upon were:
- The video surveillance obtained showed the Claimant doing things which she had told experts and the DWP she could not do. This included manual labour in a horse paddock and driving a manual vehicle.
- The Claimant had been dishonest about whether she regularly cared for horses. She had made express reference to the fact that she was looking after “my” horses and had repeatedly attended work in dirty clothing after tending to horses.
- The Claimant had been dishonest about her car. She had dishonestly claimed that she was required to drive an automatic vehicle with adaptations. It emerged over the course of the trial that she had in fact purchased a second automatic vehicle after disclosure of surveillance and changed the numberplate. This was part of a desire to put her original manual car “into hiding,” as she had stated in a Facebook message to her mother. She also attempted to find individuals to fraudulently support her assertion that she had her car converted.
Practice Points
Two practice points arise from O’Connell in relation to Part 35 experts. They are of particular importance in cases involving fundamental dishonesty and, I would suggest, especially where the claimant relies on a pain syndrome to explain their presentation and this is refuted by the defendant.
First, O’Connell provides an important reminder that experts are required to explain if they have changed their opinion and why. The Claimant’s pain medicine expert, Professor Lalkhen, stated in his first report that the Claimant was suffering from Complex Regional Pain Syndrome. This was before the Claimant was subjected to surveillance footage. In this report, he included a section favourable to the Claimant about “Issues of veracity” and “Malingering/Symptom magnification/Exaggeration.” However, after the Claimant was subjected to surveillance, he produced a second report. He revised his diagnosis to “chronic pain after peripheral nerve injury.” In this report, Professor Lalkhen did not include sections with the same titles about issues of veracity, malingering, and exaggeration. The judge held that the reason for that must have been that he had changed his mind. He also stated that the expert should have explained why he had changed his mind. Therefore, where a section of an earlier report is omitted in a later report, to fulfil their duty under PD35.2.5, experts should explain they have changed their mind and why.
Secondly, whilst the determination of whether the claimant’s credibility is, of course, a matter for the court, experts should not be afraid to provide their view about the claimant’s presentation in relation to others with similar conditions. The judge explained, in relation to the section in Professor Lalkhen’s first report, “it helps… to hear from an expert how a particular Claimant compares with other individuals with similar conditions whom the expert has seen in clinical practice. The expert can point out the presence or absence of anything unusual in the history they obtain, in their findings on examination, in their review of the records and in the statements and other relevant material in the case” [96].
The judge similarly rejected the Claimant’s contention that the Defendant’s pain expert, Dr McDowell, went beyond his role by stating that he would have expected to observe muscle-wasting in the Claimant’s left arm if she was symptomatic to the extent claimed. Experts are clearly entitled to opine on what they would expect to see in patients with similar conditions. This does not cross the line into commenting on the claimant’s truthfulness.
Emma-Louise Fenelon of 1 Crown Office Row appeared as junior counsel for the Defendant, led by Niazi Fetto KC of 2TG. She did not contribute to this article.
