Summary
This matter related to claim made for clinical negligence. Quantum had been agreed at £1 million, but liability was disputed. The Defendants made it clear that they would be alleging Fundamental Dishonesty against the Claimant but failed to establish Fundamental Dishonesty at trial.
Dispute being successful in the overall claim, the Court ordered the Defendants to pay the Claimant 15% of the costs incurred following the allegation of Fundamental Dishonesty, due to their failure to establish this element of the claim. While an overall costs order was made against the Claimant, the matter fell under the previous QOCS regime which prevented the Defendants from being able to set off their own costs against the Claimant’s costs
Background
The claim was brought due to the Second Defendant refusing to offer the Claimant thrombosis to treat a stroke he had on 16 November 2016. It was alleged that this caused the Claimant to experience severe disability.
The Claimant is a distinguished orthopaedic surgeon with significant achievements within his field. He also had an educational role with the University of Cambridge , which he has since developed due to the stroke rending him unable to carry out surgery.
Quantum had been agreed between the parties in the sum of £1,033,824, including interest. However, liability remained in dispute.
The allegation of Fundamental Dishonesty
The allegation first arose in a counter-schedule, following the experts’ examination of the Claimant. It was alleged by the Defendants’ Expert that the Claimant had not put any effort into his testing, resulting in the Claimant scoring lowly on the various tests performed. A Test of Memory and Malingering (TOMM) was also carried out, which resulted in the expert determining that the Claimant’s tests results could not be relied upon.
During cross-examination, it was alleged that the Claimant had deliberately reconstructed his case to give it the most favourable appearance, and that he had deliberately failed to put the required effort into the neuro-psychological testing to produce artificially low results.
The Defendants’ Expert stated that the Claimant scored low on both TOMM tests but conceded that the there are several reasons why the Claimant may have failed, including reduced concentration, anxiety or intentional malingering. In any event, the Defendant’s expert considered the outcome of the TOMM tests rendered it virtually impossible to arrive at a clinical diagnosis.
The Claimant’s expert took the view that the failure in testing in stroke patients is not evidence of malingering, as it is expected for such patients to experience issues with memory and attention to detail. The Claimant’s expert also challenged the accuracy of TOMM testing in stroke patients, suggesting that the cut off score used is inappropriate for patients suffering from a stroke or a moderate to severe brain injury.
The approach taken by the Court
The Court first considered the five elements of a finding of fundamental Dishonesty. These being:
- A Section 57 (Criminal Justice and Courts Act 2015) Defence must be raised
- The burden of proof is on the Defendant to the civil standard
- A finding of Fundamental Dishonesty must be necessary
- The subject matter to which the dishonesty relates must be fundamental to the claim
- The dishonesty must have a fundamental impact on the presentation of the claim
The Court disagreed that the Defendant had discharged their burden to the civil standard. Consideration was given to the performance of the Claimant during cross examination and the judge was satisfied that the Claimant had not attempted to mislead the Court in any way.
It was also considered that the Claimant’s conduct to rehabilitate himself to be able to return to work would contradict the impression that he had exaggerated his injuries. The claim for fundamental dishonesty was dismissed however, the Claimant was also unsuccessful in their claim for clinical negligence., Attention turned thereafter onto costs.
Costs considerations
It was raised during submissions following the conclusion of the trial that the Claimant had put the Defendants on notice that an application for costs would be made if the issue of fundamental dishonesty failed. It was also raised that the Defendants had made two ‘drop hands’ offers prior to the trial.
The Court considered it appropriate to make an order that reflects the Defendants’ failure to establish their Fundamental Dishonesty claim, as to not make such an order would give the Defendants a free opportunity to make such an allegation without consequence.
It was deemed appropriate for an order be made for the Defendants to pay 15% of the Claimant’s costs following the date the allegation of Fundamental Dishonesty was made. An Order was made for the Claimant to pay the Defendants’ costs however, as the claim fell under the old QOCS regime, the Defendants would be unable to set-off their own costs against the Claimant’s costs.
Analysis
This case demonstrates the pitfalls of making an unsuccessful claim for Fundamental Dishonesty and the Court’s readiness to impose costs consequences even if successful overall at trial.
It would be sensible for practitioners to consider the 5 steps necessary to establish fundamental dishonesty and, in the event all five steps are not met, it may be preferable to cease this line of enquiry as soon as possible to avoid potentially facing an adverse costs order after trial.
Comments