CASE COMMENT: Roberts v Kesson and Tesco Underwriting Limited [2020] EWHC 521

November 13, 2020

By Alice Dobbie

Can a Claimant avoid ‘fundamental dishonesty’ consequences if he admits dishonesty but only pursues the honest elements of his claim at trial? Alice Dobbie considers the question facing Jay J in Roberts v Kesson and Tesco Underwriting Limited [2020] EWHC 521.

Summary

The test for dismissing a claim for dishonesty under section 57 of the Criminal Justice and Courts Act 2015 is whether the Claimant “has been” dishonest, rather than “is” dishonest. Accordingly, if there has been dishonesty in the claim (perhaps in advancing a schedule of loss early on which was false in part, for instance) it is of no use to a Claimant to assert that he has not persisted at trial in pursuing the dishonest part of his claim. The whole claim should be dismissed.

The facts

The Claimant’s car was badly damaged by the negligent driving of the Defendant. The Claimant stated that his car had been written off and claimed the pre-accident value in his schedule of loss. His witness statement confirmed this and said that he had used the salvage money to obtain a replacement vehicle.

However, the Defendant was able to discover that the Claimant had kept the damaged car, had it repaired and sold it privately.

Upon notification of this discovery, the Claimant made a second witness statement in which he said that his earlier claim for the pre-accident value of the car was wrong. In cross-examination, he accepted that he had acted dishonestly in claiming the pre-accident value.

The decision

At first instance, the Judge found that the Claimant had acted dishonestly but because he had not persisted with the dishonesty at trial he was awarded damages on his honest heads of loss.

On appeal, Jay J overturned that finding. He substituted it for one of fundamental dishonesty on the basis that the Claimant had been dishonest in his schedule of loss and first witness statement. As he said: “I do not agree.. that the correct test is one of persistence in the dishonesty because that does not reflect the language of section 57”.

In so ruling, he was plainly conscious of Parliament’s intention that section 57 should have draconian force: “..if a party advances a claim which is dishonest and it is significant and substantial, the court should not be slow to find that the stringent criterion of section 57 has been fulfilled.”

Lessons for Defendants

1. Rigorously plead your counterschedule. If you think that, for instance, the care claim is false or dishonestly inflated, say so. Make it clear that you will rely on the Claimant’s statement of truth to establish dishonesty, even if an updated counterschedule or witness statement resiles from a suspicious head of loss.
2. Make sure this point is explored adequately in cross-examination and that dishonesty is put clearly to the Claimant.
3. Put a skeleton argument in front of the judge on this issue. District Judges and Circuit Judges are required to have broad expertise which means that they don’t always have an in-depth appreciation of the dishonesty case law. They also have to give swift ex tempore judgments. So don’t present nuanced arguments orally if such arguments are covering novel ground for the judge. Instead, put the arguments in writing so that they can properly digest the points.
4. Leverage this case law in your pre-trial correspondence. Sometimes a Defendant’s objectives will be met by the Claimant discontinuing and leaving costs where they lie, rather than pursuing the case to trial. Refer to Roberts specifically in correspondence and state that you are prepared to pursue a dishonesty finding based on past rather than current dishonesty, should the Claimant not discontinue.

Alice is a member of the Personal Injury: Defence team at Exchange Chambers.