The High Court has overturned a judge’s finding of fundamental dishonesty, after ruling that the reasons were not properly explained.

His Honour Judge Khan, sitting at Burnley County Court, had said in his judgment it was ‘axiomatic’ that the personal injury claimant’s dishonesty over a head injury had been fundamental.

But after the finding was appealed, Mr Justice Freedman said in Denzil v Mohammed & Anor that this was an ‘objectionable’ term as it made the assumption of fundamental dishonesty ‘without grappling with the question of why it was fundamental to the claim’. The judge’s reasoning that the alleged dishonesty went to the root of the claim was ‘no more than an expression that the dishonesty was fundamental’, added Freedman.

The court heard that during his oral evidence, claimant Attique Denzil complained that in addition to his neck and back injuries he had also suffered a head injury for around four days, following a motor accident in 2019.

The claim for a head injury was not referred to in the particulars of claim and did not feature in the medical expert’s report.

The judge said Denzil knew that he had not sustained a head injury and was fundamentally dishonest in relation to the primary claim, even though this represented a small element of the overall claim. On appeal, Denzil's representatives submitted there was no basis to find that dishonesty went to the root of the case: the allegation was not part of the pleaded claim and counsel had not invited the judge to include it when assessing quantum of damages.

The defendant maintained the head injury was ‘not a passing concoction but a mercenary deception’, and that the judge had shown he understood the law on fundamental dishonesty.

Freedman said the HHJ Khan had not explained how the dishonesty could be fundamental in circumstances where the head injury did not form a part of the pleaded case. He added: ‘There is no scope to find that such a minor and very short-lived injury, not forming part of the pleaded claim, but referred to in written and oral evidence, could be properly characterised or understood as being fundamental or going to the root of the claim.’

The judge’s decision was overturned and the finding of fundamental dishonesty set aside. The claim will no longer be treated as dismissed.

 

This article is now closed for comment.