In the recent case of Jenkinson v Robertson  EWHC 791 (QB) on 31st March 2022, the High Court concluded an appeal by Claimant, Mr Andrew Jenkinson, that he had been “fundamentally dishonest” when claiming for personal injury against the Defendant, Mr Gary Robertson. What is particularly notable in this case is the way in which the allegation of fundamental dishonesty was brought up after the close of trial evidence. Here we will look at the facts of the case and the conclusion reached by the High Court.
Background of the case
The matter of Jenkinson v Robertson concerned a road traffic accident on 24th July 2013 involving the Defendant and the Claimant, in which the latter allegedly sustained injuries. He brought a personal injury claim on the basis of multiple injuries, including “fractured ribs, and soft tissue injuries to his knee, cervical spine, lower back and abdominal wall”. The Claimant alleged a serious mid-back injury including “soft tissue and bone injury to mid-back engendering the development of Schmorl’s nodes (at T12) and permanent symptoms of pain and related disability worsening over time”. It was reported that all of the injuries had resolved within a period of 30 months, with the exception of the mid-back injury, which had a longer-term prognosis. The Defendant admitted responsibility for the accident and the injuries alleged by the Claimant.
The case involved evidence from two consultant orthopaedic surgeons, with one of the main considerations being whether there was a causal link between the accident and the onset of the Claimant’s back pain.
“A willingness to manipulate the evidence”
During the initial trial hearing, HHJ Christopher Dodd found that the Claimant was an “apparently sincere, pleasant individual who had fully mastered the details of his case”, but he also concluded that on one particular issue, he “demonstrated a willingness to manipulate the evidence to his perceived advantage”. This related to the non-disclosure of a radiological report produced by Dr Young. The Judge also found that the Claimant was not able to provide a reasonable answer for why there was no mention of his back pain in many of the contemporaneous medical records. As a result, he concluded it was “overwhelmingly likely that the Claimant’s recollection of the origin and development of back symptoms has become, to say the least, unreliable” and that the causal link between the accident and the symptoms had not been established on a balance of probabilities. The Judge found that the only injuries sustained by the Claimant were those already admitted to by the Defendant.
Crucial to this case was that after the close of evidence and in the course of closing submissions, the Defendant’s legal counsel asked the Judge to consider whether the Claimant had been fundamentally dishonest in bringing a case against their client and to dismiss the entire claim. Applying tests for dishonesty and fundamental dishonesty, the trial Judge concluded, amongst other things, “I cannot find, on the balance of probabilities, that the Claimant, an intelligent man, sincerely believes the account of his symptoms that he has put before the Court. He has, I am afraid, been fundamentally dishonest in advancing the Claim”.
The Judgment handed down on 9th October 2020 dismissed the claim, and the Claimant was ordered to pay the costs of the Defendant.
Basis of the Appeal
The Claimant then appealed on the basis of three grounds:
1. As a matter of procedural fairness, the Claimant was not given sufficient notice of, or opportunity to respond to, allegations of fundamental dishonesty.
2. The Judge wrongly reversed the burden of proof, effectively requiring the Claimant to prove that he had not been fundamentally dishonest.
3. The Judge was led into error or was simply wrong, in relation to each of the factors on which he based his decision that the Claimant was fundamentally dishonest.
It was submitted that inviting the court to determine if the Claimant had been fundamentally dishonest after the deadline for evidence was, in effect, an “ambush”, “precluding him from having a proper opportunity to deal with the allegations”.
Discussion and conclusion of the High Court
On the first matter of adequacy of notice, Mr Justice Choudhury agreed that there had been a serious procedural irregularity “in that the Claimant was not afforded adequate notice of the basis on which it was alleged that there was fundamental dishonesty”.
The second ground for appeal was dismissed on the basis that Choudhury J was not able to conclude the Judge was “plainly wrong in the application of the burden of proof”.
After a considerable amount of consideration on the third ground for appeal, Choudhury J found that the trial Judge had been wrong in respect of each of the three factors on which he relied to decide Jenkinson was fundamentally dishonest; he stated, “In my judgment, that conclusion was plainly wrong and cannot stand”.
As such, grounds one and three of the appeal were allowed. Ground two was dismissed.
Mr Justice Choudhury concluded that the finding of fundamental dishonesty and the consequential orders made should be set aside.
This case highlights the importance of timing and the submission of evidence in providing sufficient opportunity to respond to a serious allegation such as fundamental dishonesty. As Choudhury J stated, “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”.
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