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To date, and perhaps surprisingly, there has been very little attempt by the Courts to grapple with this vexing question when considering whether to impose the consequences of a finding of fundamental dishonesty pursuant to s57 of the Criminal Justice and Courts Act 2015.
The best we had were the efforts of Knowles J in London Organising Committee of the Olympic and Para Olympic Games v Sinfield who stated:
“[65]. Given the infinite variety of circumstances which might arise, I prefer not to try and be prescriptive as to what sort of facts might satisfy the test of substantial injustice. However, it seems to me plain that substantial injustice must mean more than the mere fact that the Claimant will lose his damages for those heads of claim that are not tainted with dishonesty. That must be so because of s 57(3). Parliament plainly intended that sub-section to be punitive and to operate as a deterrent. It was enacted so that Claimants who are tempted to dishonestly exaggerate their claims know that if they do, and they are discovered, the default position is that they will lose their entire damages. It seems to me that it would effectively neuter the effect of s 57(3) if dishonest Claimants were able to retain their ‘honest’ damages by pleading substantial injustice on the basis of the loss of those damages per se. What will generally be required is some substantial injustice arising as a consequence of the loss of those damages.”
And Knowles J again in Woodger v Hallas [2022] EWHC 1561 (QB), commenting:
“[49]. Counsel on this appeal were unable to refer me to any case which has defined the meaning of ‘substantial injustice’. I was not wholly surprised by that. To paraphrase US Supreme Court Justice Potter Stewart in Jacobellis v Ohio 378 US 184, 197 (1964), county court judges will generally, ‘know it when they see it’.”
Whilst there is a certain attraction to the Lutheran approach of ‘know it when you see it’ when considering ‘substantial injustice’, especially given the wide range of circumstances in which ‘injustice’ could occur, the lack of a prescriptive test, or a non-exhaustive list of factors, or any real guidance for that matter, is an uncomfortable outlier for practitioners taught to ground advice to statute and precedent. That is especially so because, at least in this practitioner’s experience, some lower Courts have to be convinced to move away from the extremist interpretation of Knowles J judgments by refusing to consider at all what the impact of the loss of damages will have on the Claimant.
That was the landscape that faced Ritchie J in Williams-Henry v Associated British Ports Holdings Ltd [2024] EWHC 806 (KB), who was invited to grapple with this very issue.
First, as a matter of full disclosure, Ritchie J is of this parish. He was our former Head of Chambers and the author has had the privilege of being led by him on a number of occasions. He is not a man who is afraid to give his opinion or push the established legal frontiers, and though only recently having taken to the bench, he has remained true to his former self.
Second, I would say to anyone who has any pretentions to specialise in catastrophic injury work, particularly concerning brain injuries, that the judgment is essential reading.
Ritchie J sets out in devastating detail the importance of careful analysis of the medical records. Give yourself a couple of hours though – it is a long one.
So what was it all about?
There is no doubt that Kirsty Williams-Henry was tragically and seriously injured when she fell off the end of Aberavon Pier in the dark on 21 July 2018. The fall caused her to suffer bilateral cerebral, subdural and sub-arachnoid moderately-severe brain damage amongst other serious injuries. Secondary symptoms included reduced cognition, some hearing loss, fatigue and a slight personality change.
The Defendant admitted primary liability for Ms Williams-Henry’s fall, and liability was ultimately agreed with a reduction of one third for contributory negligence.
As found by Ritchie J, and supported by substantial medical notes, Ms Williams-Henry, over the course of 3 years, made a remarkable recovery. She was able to look after herself, live alone, drive, return to work in a demanding role and lead an almost normal life. It was testament to her hard work, that of her family and her NHS neuro-rehabilitation team. Ms Williams-Henry became an advocate for those suffering brain injury and in that respect was and is an impressive person.
This inspirational story was indelibly soured, however, by the conduct of Ms Williams-Henry in litigation (and in her approach to seeking benefits and life insurance) when she pleaded a claim worth £2.5 million for a life irrevocably changed, suffering little by way of recovery and a paucity of enjoyment. In the blunt words of Ritchie J her case was a ‘lie’, and it was easily unpicked by the Defendant with reference to her own medical and employment records, social media posting and surveillance evidence.
Ritchie J was aghast at how this was ever allowed to happen. Ms Williams-Henry’s legal team appointed a brain injury case manager to assist her in her recovery. In Ritchie J’s view he appeared to have either ignored or not properly consider the Claimant’s medical records and fatally took her dishonest reported account of suffering at face value. It led to some disastrous decisions including sacking her NHS treating team and embarking on a costly, presumably unwarranted, course of private neuro-rehabilitation. Even worse Ms Williams-Henry unnecessarily decided to give up her successful career working in insurance, in part, so she could get the treatment. The errors in the case manager’s conduct were compounded by Ms Williams-Henry’s instructed experts, particularly her care expert, who failed to properly raise obvious red flags that Ms Williams-Henry was not as sick as she claimed – By way of a side note, this is the second judgment where Ritchie J has been highly critical of a party (this time it was the Defendant’s care expert) for instructing a ‘care expert’ with no theoretical or practical experience in managing brain injury cases, so practitioners be warned (see §188 of the judgment).
By simply tying Ms Williams-Henry to the contemporaneous records of her recovery, Ritchie J found the Claimant had blatantly and persistently lied throughout the litigation for the purpose of unjustly enriching herself at the Defendant’s expense. In the circumstances, it was inevitable that she was fundamentally dishonest.
Pursuant to s57(2), Ritchie J was then required to dismiss Ms Williams-Henry’s claim unless he found that there was a ‘substantial injustice’ in doing so.
Applying the ‘knows it when you see it’ test, I would be surprised if there are many reading this whose first convulsive thought is not that Ms Williams-Henry was the mistress of her own downfall. To those who have that thought I would not suggest that it is not unreasonable, but I would also ask them to consider that when all was said and done, Ms Williams-Henry was seriously injured, she suffered a genuine significant loss as demonstrated by the ‘but for the dishonesty’ award of c.£600k (on a full liability basis equating to c.£900k), and though not a defence to her actions the impression given by the judgment was that no-one from her family, her case manager or her private treating medical team took her in hand, when she so clearly needed someone to do so.
A further troubling feature was that there was evidence before the Court, which Ritchie J considered and accepted, that since at least July 2023 Ms Williams-Henry had begun to develop genuine depressive psychotic symptoms, no doubt caused at least in part due to the pressure of the litigation and the correctly brought allegations of fundamental dishonesty, and that any fundamental dishonesty finding would lead her to making a genuine attempt to take her own life.
In light of all the above, Ritchie J took the opportunity to express his view on the risk of misinterpreting what Knowles J had stated as to the correct approach to the issue as hand:
“[177] The principle to be applied is that fundamental dishonesty will result in the Claimant losing her genuine damages. This penalty is intended by Parliament. So, the starting point is that a dishonest claimant is not suffering an injustice per se by being deprived of his/her genuine damages. Once fundamental dishonesty has been found by the Judge then the Court must consider whether the dismissal will cause SI. However, trying to identify whether dismissing a claim for damages with a properly assessed genuine quantum of say £600,000 would cause any or even a substantial injustice to a claimant, whilst ignoring the very dismissal which is the only operative cause of any potential injustice, is imposing a blindfold on the Judge which the Act itself does not impose. I do not understand how a Judge will know injustice when she/he sees it, with the blindfold put on. If that is what Knowles J. was saying then I respectfully do not agree with his ruling on the interpretation of SI. The plain words of the Act tie the responsibility to assess any resulting SI to the dismissal of the claim. In my judgment it is the dismissal of the claim for damages that is the trigger for the analysis of whether a substantial injustice will occur if no damages are awarded. One cannot ignore the very thing which S.57(3) takes away when considering the injustice of the taking away. I accept, of course, that the aim of the section is to punish dishonesty by the dismissal of the claim. But this is tempered by Parliament’s inclusion of S.57(2). This section gives the Judge discretion which, is to be exercised fairly and only if a threshold with two parts is reached. Part one is a finding of injustice to the Claimant. Part two is a finding that the injustice is substantial.”
Thereafter, Ritche J set out as a guide a list of factors he believed were relevant to any Court’s decision:
“[178] I consider that the correct approach when deciding whether a substantial injustice arises is to balance all of the facts, factors and circumstances of the case to reach a conclusion about SI. The relevant factors in my judgment are all of the circumstances and include:
1. The amount claimed when compared with the amount awarded. If the dishonest damages claimed were small or moderate compared to the size of the assessed genuine damages which were substantial or very substantial this will weigh more heavily in favour of an SI ruling.
2. The scope and depth of that dishonesty found to have been deployed by the claimant. Widespread and gross dishonesty being more weighty against SI than moderate or minor dishonesty.
3. The effect of the dishonesty on the construction of the claim by the claimant and the destruction/defence of the claim by the defendant. This would be measured by considering all matters including the costs consequences of the work done in relation to the dishonesty compared with the work done had there been no dishonesty.
4. The scope and level of the claimant’s assessed genuine disability caused by the defendant. If the claimant is very seriously brain injured or spinally injured, then depriving the claimant of damages would transfer the cost of care to the NHS, social services and the taxpayer generally and that would be more unjust than if the claimant had, for instance, a mild or moderate whiplash injury. The insurer of the defendant (if there is one) has taken a premium for the cover provided. Why should the taxpayer carry the cost?
5. The nature and culpability of the defendant’s tort. Brutal long term sexual abuse, intentional assault or drug fuelled, dangerous driving being more culpable than mere momentary inadvertence.
6. The Court should consider what the Court would do in relation to costs if the claim is not dismissed. The Judge should ask: will the Court award most of the trial and/or pre-trial costs to the defendant in any event because fundamental dishonesty has been proven? Also, will the claimant have to pay some or all of his/her own lawyers’ costs out of damages if the claim is not dismissed? These both aim towards answering the question: “what damages will be left for the claimant after costs awards, costs liabilities and adverse costs insurance premiums are satisfied?” If the genuine damages to be received by the claimant will be substantially reduced or eradicated by the adverse costs awards, then it is less likely that SI will be caused by the dismissal.
7. Has the defendant made interim payments, how large are these and will the claimant be able to afford to pay them back?
8. Finally, what effect will dismissing the claim have on the claimant’s life. Will she lose her house? Will she have to live on benefits, being unable to work?”
He then applied them to Ms Williams-Henry’s case as such:
“[205] For the decision on SI I shall take each relevant factor in turn.
1. The amount claimed when compared with the amount awarded. The Claimant sought £2.5 million and recovered just under £600,000. The difference is not outside the usual bounds of claims and awards in personal injury claims, however the dishonest parts of the claim inflated the damages sought by over £1 million.
2. The scope and depth of the dishonesty found to have been deployed by the Claimant. The scope of the Claimant’s untruths was wide. They related to her asserted pain, her ADL, her social life, her physical disabilities and her mental disabilities. The level of dishonesty was high in my judgment and was for financial gain. The Claimant told ancillary untruths to the DWP and the life insurer L&G for financial gain alongside her many fundamental untruths to this Court, her treating clinicians and the experts.
3. The effect of the dishonesty on the construction of the claim by the Claimant and the destruction/defence of the claim by the Defendant. I consider that the Claimant’s dishonesty had a very substantial effect on the trial, on the preparation for the trial and on the evidence relating to the claims for case management, care, therapies, loss of earnings and the figure for pain and suffering and loss of amenity. It also led to many more experts’ reports.
4. The scope and level of the Claimant’s assessed genuine disability caused by the Defendant.
The Claimant is moderately severely brain injured but has made a very good physical and cognitive recovery. Depriving the Claimant of damages will not transfer much, if any, cost of care to the NHS, social services and the taxpayer generally. In my judgment she can work and live independently.
5. The nature and culpability of the Defendant’s tort. The Defendant’s tort was at the lower end of the culpability scale. The pier had stood in the state it was in for years with no previous accidents.
6. The Court should consider what the Court would do in relation to costs if the claim is not dismissed.
If I were to find SI, I would almost certainly award the trial and pre-trial costs to the Defendant in any event because fundamental dishonesty has been proven. These costs may be very substantial considering the size of the Defendant’s costs budget. I have, of course, not seen any Part 36 offers, but the fundamental dishonesty will have an overarching effect on the costs orders which usually flow from Part 36 offers. The Claimant would most likely have to pay some of her own lawyers’ base costs and success fees out of damages if the claim is not dismissed because of my probable adverse costs orders against her. What damages will be left for the Claimant after adverse costs awards, her own lawyers’ costs and insurance premiums are satisfied? Will her adverse costs insurance cover fundamental dishonesty? I doubt it, but have not been shown any policy. In my estimation the genuine damages to be received by the Claimant will be reduced (or potentially eradicated) by the adverse costs orders and the standard terms of her own CFA (which I have not seen but which usually entitle the lawyers to recover their costs on recovery of any sum in damages). It would have assisted the Court if I had been shown the CFA and the adverse costs insurance policy for the SI issue.
7. Finally, what effect will dismissing the claim have on the Claimant’s life. I am unsure what the effect will be on the Claimant’s life. I consider that she is capable of work, physically and mentally, from the perspective of the injuries caused by the Defendant. I take into account the evidence of the Claimant’s suicidal ideation. I consider that the Claimant’s current unstable state of mental health has been caused by her own dishonesty. The advice she received to take a sabbatical and later, to give up work, was likewise so caused. The Claimant was in work until October 2022. In my judgment her stopping work was not caused by the tort. I am unclear whether the dismissal of the claim will lead to the Claimant being unable to repay her mortgage. She paid part of it off out of the £108,000 she received from an insurance policy after the fall. She should be able to afford the reduced mortgage repayments if she gets back to work. She has minimal savings.”
In reaching his finding that there wasn’t substantial injustice leading to the dismissal of the case, Ritchie J also took into account the fact that before trial the Claimant had received £75,000 in interim payments. When dismissing the case then the natural order of things would normally require that these monies were repaid back to the Defendant. The only way that the Claimant would have been able to do this was by selling the one substantial asset she now had, her home.
In what appears to have been an astute tactical decision, the Defendant did not invite Ritchie J to make such an order if he dismissed the case. In fact, the Defendant reminded the court of its power to refuse to make such an order pursuant to CPR Part 25, thus removing probably Ms Williams-Henry’s best argument for injustice from the table.
This article was first published on the Deka Chambers website as a “Dekagram” 15th April 2024.
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