The High Court has overturned a finding of fundamental dishonesty in a civil claim because defence lawyers brought it up only after the close of trial evidence.

Mr Justice Choudhury said the claimant in Jenkinson v Robertson had suffered from a serious procedural irregularity when he was not afforded adequate notice on the basis for alleging fundamental dishonesty.

Andrew Jenkinson, then a litigant in person, had claimed for £500,000 following an RTA in 2013, but the defendant  accepted only injuries worth £14,000. In the course of closing submissions at trial, defence counsel invited His Honour Christopher Dodd to dismiss the entire claim based on the dishonesty allegation.

The judge dismissed the claim and ordered Jenkinson to pay the defendant’s costs, but on appeal claimant lawyers accused the defendant of mounting an ‘ambush’ and denying their client a proper opportunity to deal with the allegations.

Choudhury said that in the interests of fairness, a claimant should be given adequate warning of the possibility of a finding of fundamental dishonesty.

The defendant acknowledged that there was no express notice, but said that correspondence between the parties had asserted the claim was ‘exaggerated’ and unreasonable’ and referred to the rules around fundamental dishonesty.

Choudhury responded: ‘A claim that is unreasonable is not necessarily dishonest; it may simply be misconceived. A claim that is exaggerated may be so because of the inclusion of losses that are wrongly believed to arise out of the accident in question. If a defendant wishes to establish that an exaggerated or unreasonable claim is fundamentally dishonest, then the basis on which that dishonesty arises or is alleged to arise ought to be made clear.’

The court heard that Jenkinson was alleged to have been dishonest about the onset of a back injury. That particular allegation was not asserted by the defendant at any stage before trial, nor was it expressly put to Jenkinson that he was being dishonest.

Choudhury added: ‘It seems to me that if the defendant’s case was that the claimant was putting forward a dishonest claim, that ought to have been put to him fairly and squarely in order that he could respond, even if the only response he could muster is a bare denial that he is lying. He was not given that opportunity.’

It was also found that the trial judge was wrong in relation to each of the factors on which he based his decision that Jenkinson was fundamentally dishonest. The judge’s finding and consequential order were set aside.

 

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