Fundamental dishonesty and miscarriages of justice: Aviva Insurance Limited v Atiquillar Nadeem & Anor [2024] EWHC 3445 (KB)

February 6, 2025

by Chris Richards

This article mentions suicide. If you have been affected by any of the issues in this article, you can find information and support here:
https://www.nhs.uk/mental-health/feelings-symptoms-behaviours/behaviours/help-for-suicidal-thoughts/

Introduction

For some barristers, their email address is a closely guarded secret. My email address, perhaps unwisely, is on my profile page for all the world to see. As a result, I get emails from all sorts of different people. Most are trying to sell me something (no, I do not need a tailored suit, or life insurance, or business cards, thank you very much). Some are people asking me for free legal advice, which, unsurprisingly, results in a polite ‘no’.

But there is one email which I keep getting again and again. It is usually a fairly ordinary sort of person, with a job and a family, who has brought a personal injury claim, and where things have gone horribly wrong. They have been suddenly confronted with an allegation of dishonesty. They are telling the truth about what happened, they tell me, but the other side does not believe it. They are being threatened with all sorts of terrible consequences. For some of the people who write to me, the trial has already happened, and the Judge has decided that their claim is dishonest. They are bewildered. They tell me a familiar story – problems with their solicitor, problems with their barrister, a Judge who did not seem to listen, and a disaster that they had no idea was coming.

I have had several emails from people contemplating suicide.

I want to be clear about something. I have no doubt that there are plenty of people who do bring dishonest claims. Sometimes there is absolutely no doubt that someone has lied. I was involved in a High Court case where the Defendant had obtained surveillance evidence (i.e. someone following the Claimant around with a video camera), which demonstrated beyond any doubt that the Claimant was lying. It happens, and it probably happens a lot.

The thing that makes me nervous when I receive these emails is that this frantic search for help is not something you would expect, in my view, from a genuine fraudster. A genuine fraudster who is found out, in my experience, will lie low and try and avoid the consequences. Desperately trying to find someone who can help, someone who can fix something which has gone wrong – that could, at least, be consistent with someone who is telling the truth.

The other thing that makes me nervous is that the way that personal injury claims are dealt with, particularly in lower-value claims, is guaranteed, in my view, to generate miscarriages of justice from time to time:

• The solicitors representing Claimants work extremely hard to prepare cases. However, the costs which they can recover from the other side if they are successful, for lower-value cases, are capped at a level which is absurdly low (effectively allowing no more than a few hours of work for a junior solicitor). It is naive to think this has no bearing on the work that can be done.
• The fees for the barristers in lower-value cases are also fixed, and can end up (after deductions for lost cases, and expenses) being as little as £10 per hour. It is difficult for anyone but the most junior barristers to justify taking this work. It is again naive to think this does not have an effect.
• The costs of the Defendants (who are usually funded by big insurance companies) are not fixed, and so Defendants can spend as much as their insurer is willing to pay. They may have double or triple the money available. This generates an obvious inequality of arms.
• If errors are made when the case is being prepared, and it results some sort of inconsistency (e.g. about which parts of the body were injured, whether time was taken off work, or whether medical attention was sought), it is very easy for Defendants to suggest that these inconsistencies have arisen through dishonesty. Dishonesty itself can produce inconsistency.
• There is a natural variability in the willingness of Judges to make findings of dishonesty, and unfortunately, as has been revealed through successful appeals, findings of dishonesty may be made where the evidence does not merit it, or where the hearing has become unfair.

Another thing that makes me nervous, and I have to be mindful here of confidentiality, is that many junior barristers will have experience of cases where findings of dishonesty were made, where they did not think they were supported on the evidence, and where there was nothing that could be done in terms of appeal. It is easy for barristers in situations such as this to feel a sort of ‘moral injury’ – watching something happen that you know is not right, and not being able to do anything about it.

Perhaps those reading this will think this is all just nonsense – a barrister who thinks that everyone is as pure as the driven snow and who mistakes the bleating of fraudsters for some sort of genuine problem. But I want to discuss the case of Aviva Insurance Limited v Atiquillar Nadeem & Anor [2024] EWHC 3445 (KB), which has recently been reported in the legal news.

This is a case where things went seriously wrong, and where many of the issues which I have described above appear in black and white.

The disclaimer

What I say in this article is purely based on the judgment which has been uploaded to the National Archives website [https://caselaw.nationalarchives.gov.uk/ewhc/kb/2024/3445]. I have no personal involvement with the case, or knowledge of any of the parties. Anything I say about honesty, or dishonesty, or how the case was dealt with, is purely based on the content of the judgment.

Furthermore, nothing in this article is intended to be legal advice to be relied upon.

What happened in the case?

The basic history of the case is as follows. There was an accident involving two vehicles:

• A Mercedes, which had a driver named Sidiqi, and a passenger named Nadeem;
• A Citroen, which had a driver named Hibbert.

Sidiqi did not bring a claim for compensation. Nadeem said that he had suffered some whiplash to his neck and back, and brought a claim for compensation (seemingly against the insurance company representing the other driver, Hibbert). Nadeem was therefore the ‘Claimant’.

Both Nadeem and Sidiqi provided witness statements, but only Nadeem attended court for the trial.

Things went very wrong for Nadeem during trial. The Judge (DDJ Goodman) decided that the claim which has been brought by Nadeem was dishonest. The Judge not only decided that the claim was ‘more likely than not’ to be dishonest (this being the civil standard of proof), but the Judge also said that she was sure of this beyond reasonable doubt (this being the criminal standard of proof).

The reasons for the Judge deciding that the claim was dishonest revolve around what were said to be inconsistencies in (1) how Nadeem had described his injuries, and (2) the effect of the injuries on his life more widely. The Judge was even not sure that Nadeem had proven that he was in his vehicle when the accident happened. The Judge said things like this:

“The evidence he has given is completely unreliable, inconsistent and untruthful. As far as I am concerned, it is rare to say that I say it in such strong terms.” [paragraph 63]

After the judgment, the insurer of Hibbert (the other driver) made an application for committal. The insurer requested that the court find Nadeem (and Sidiqi, oddly) in contempt of court, and punish them accordingly. Punishments for contempt can include fines and imprisonment.

However, this then backfired. The Judge dealing with the appeal (HHJ Tindal) not only refused to make findings of contempt, but also trashed the judgment from the trial, and said that limited weight could be put on it. The judgment includes a number of extremely serious criticisms of how the original trial was dealt with.

We are therefore left wondering – was there actually any dishonesty at all?

How did things go wrong?

[1] The conduct of the Judge during the hearing fell seriously short

It is absolutely crucial that Judges dealing with these sort of cases not only remain impartial, but maintain the appearance of impartiality. They are perfectly able to take against a witness, or decide that they have lied, but only once they have heard all the evidence and submissions. If they give any indication before this time that they have made a decision, the hearing has become unfair, and everyone might as well pack up and go home.

I accept that the Judge appears to have been working in very difficult conditions:

“We must not overlook the fact that June 2021 was in the middle of the COVID Pandemic. Speaking as a former Designated Civil Judge, I remember vividly that it was an extremely challenging time for the Courts when there were significant backlogs and lists were often quite heavy.” [paragraph 47]

However, we cannot overlook the serious errors that were made. The Judge appears to have generally expressed irritation with Nadeem, and effectively taken over his cross-examination:

“DDJ Goodman interrupted cross-examination to say to Mr Nadeem ‘You said one thing in one statement and another in another’, suggesting that even by that stage she was starting to get irritated with his evidence.” [paragraph 50]

The Judge made other remarks which indicated disdain for Nadeem’s evidence:

“That is the most likely explanation of the apparent inconsistency between what he was saying about seven days away from the garage and the fact that his solicitors put in the CNF that he had no time off work as such. As Ms Hibbert’s counsel himself said, “That’s like work” to which DDJ Goodman replied ‘I am saying nothing.’” [paragraph 51]

These remarks could perhaps be forgiven. However, the following one cannot:

“…[i]t was unfortunate that part-way through Mr Nadeem’s rather muddled evidence, albeit on a fairly peripheral point whether Mr Sidiqui had sustained an injury, DDJ Goodman expressed herself in a way I am sure she would prefer to have phrased differently. She said to Mr Nadeem: “You’re just making this up, are you not?”. (All judges have thought that, but it is hardly ideal to say it during evidence).” [paragraph 56]

Saying that this is ‘hardly ideal’ is the understatement of the year. As soon as a Judge says something like this, again, you might as well pack up and go home. The hearing has become unfair.

We have actually reached the point in the hearing where those representing Nadeem could have applied for recusal of the Judge (effectively, requiring her to withdraw from the case), on the grounds that the test for apparent bias in Porter v Magill [2002] 2 AC 357 was made out:

‘whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased’.

We are not really talking about ‘bias’ in the way that the man on the street would understand. Bias can simply mean a Judge coming to conclusions about the case before hearing all the evidence.

There does not appear to have been any application for recusal. It is not clear why.

[2] The barrister for Nadeem was not given the chance to set out his case

A further serious error comes part-way through the trial. The Judge hears the evidence from Nadeem. The Judge is asked to decide as a preliminary issue whether Nadeem had proven his case. The Judge hears submissions (albeit very brief submissions) from the barrister representing the other driver, Hibbert. However, the Judge then goes straight to judgment, without hearing any submissions from the barrister representing Nadeem:

“Highly unusually DDJ Goodman did not then invite further submissions on the merits or credibility of Mr Nadeem from his barrister. She simply began the judgment which forms one of the keys to this case. In other words, as Mr Varnam quite rightly said, DDJ Goodman’s judgment Aviva now relies on was given without hearing meaningful submissions from Mr Nadeem’s own counsel. That was extremely unfortunate.” [paragraph 59]

Afterwards, the Judge was invited to deal with some preliminary issues, one of which appears to have been confirming that her decision was that the claim was dishonest. The barrister for Nadeem asks the Judge whether she is willing to change her mind, and she says no:

“CLAIMANT BARRISTER: Just so I have said it on behalf of the Claimant, madam, I do not know if you are willing to change your mind about the finding at all.

JUDGE GOODMAN: No.” [paragraph 67]

The barrister then tries again:

“CLAIMANT BARRISTER: All I say, madam, is that in terms of the finding of fundamental dishonesty, I did not get an opportunity to respond to any application so I simply make that —

JUDGE GOODMAN: No, I am going to make — you will have an opportunity [sic], the finding of fundamental dishonesty stands.” [paragraph 67]

This is another opportunity for the Judge to actually realise their error, and hear submissions from the Claimant’s barrister. The Judge refuses to do so. By this time, the hearing is irrevocably unfair and doomed.

[3] There were serious problems with the preparation of the medical report

The medical report, as commonly happens, contained a short section about the facts of the accident, which appears to have read as follows:

“The accident occurred during the night. Mr Atiquillah occupied the rear passenger seat in a car. He was wearing a seatbelt. A head restraint was fitted. An airbag was fitted but it did not deploy. At the moment of impact the Claimant’s car was moving at a roundabout and the first impact the Claimant’s vehicle was struck by another car at low speed. The impact came from the passenger side. In the second impact the Claimant’s vehicle was struck by a third car at low speed. The impact came from the front. The combined force of the two impacts was sufficient to cause minor damage to the car. Mr Atiquillah was thrown in all directions. He was able to get out of the vehicle unaided.”

It was taken as read during the trial that Nadeem had told the medical expert what is said in this section. This ended up causing big problems. There is reference to two separate collisions involving three vehicles, and this was completely different to what Nadeem had said elsewhere. The Judge appears to have had this in mind when deciding that the claim was dishonest.

However, we then learn that the content of this section was not written down during the consultation, but was copied across from a questionnaire, which was produced by some unknown person (probably the solicitors, but who knows):

“Whoever filled it out, the questionnaire for Mr Nadeem is at least confused, if not downright wrong. For example, it records on a series of what looked like dropdown boxes or fields on an electronic form that the first impact type was ‘my vehicle was hit by another vehicle’, which was a car, ‘at low speed from the passenger side’, and then a second impact as ‘my vehicle was hit by another vehicle, car, at low speed’ from the front. That suggests there were two impacts in the accident. No-one suggests that was the case, so that questionnaire is plainly incorrect.” [paragraph 21]

The result was that the court was effectively misled about what Nadeem had been saying.

[4] There appears to have been at least one serious factual error in the judgment

The Judge mischaracterised in her judgment some of the evidence which was given by Nadeem – evidence which was directly referred to in support of the finding of dishonesty:

“However, DDJ Goodman’s observations were at times difficult to reconcile with the evidence she had heard. In saying “He actually admitted ‘After I had legal advice I went to the walk-in centre’ that’s an attempt by this man to make money out the legal system. That is all”. Yet DDJ Goodman had noted herself earlier in her judgment that Mr Nadeem had been at pains in his statement and evidence to make clear that he went to the walk-in centre with back pain which was unconnected to the accident.” [paragraph 64]

[5] There were potentially similar errors in the preparation of the case

The judgment from HHJ Tindal is littered with criticisms of the solicitors who had been representing Nadeem. The quotation below is a good example:

“I shall not name those solicitors (who I immediately say are not his present solicitors) in this judgment. Both DDJ Goodman and myself have criticisms of those solicitors. As I will explain, it was a classic case of how a solicitor should not conduct personal injury litigation for a claimant.” [paragraph 17]

There appear to have been errors, for example, in the drafting of the witness statements:

“I observe that these paragraphs in Mr Sidiqi’s statement were plainly drafted not by him (with his limited English and suspected dyslexia), but by his solicitors. It perhaps shows how slapdash they were that they referred to Mr Nadeem as having visited the GP when they knew from Mr Nadeem that he never did so.” [paragraph 37]

In fact, Nadeem may have told his solicitors about some of the errors, with seemingly no response:

“Mr Nadeem was asked by his solicitors about his medical report which refers to two impacts with three vehicles involved. He told his solicitors there were just the two involved and the medical report was incorrect. I noted this earlier in explaining my finding that Dr Bansal did not ask him about this at the appointment, otherwise he would have corrected it, as he did with his solicitors (although there is no evidence they went back to Dr Bansal to correct his report).” [paragraph 33]

The mistakes resulted in significant inconsistency in the evidence being presented to the court, which helped to convince the original Judge that the claim was dishonest:

“Yet given that he brought errors to the attention of his former solicitors which they did not address and made other errors even as basic as getting his name wrong, in my judgement the essential inconsistencies in his evidence back in 2021 are probably down to misunderstandings and his previous solicitors’ failings, not dishonesty by him.” [paragraph 87]

Importantly, the Judge makes clear that the sort of problems with the preparation of this case are seen much more widely:

“Unfortunately, as is typical in my experience, one does not see the same level of preparation and care in that sort of high-volume County Court litigation as one sees in litigation in the High Court.” [paragraph 18]

[6] There was little opportunity for the Claimant to speak to his barrister before the hearing

The fixed costs rules I mentioned earlier prevent Claimant solicitors from recovering the cost of having a separate conference before the trial with the client and their barrister. As a result, these conferences almost never happen. The discussion which the barrister has with their client immediately before the trial begins can often be the only real chance they have to speak.

This discussion needs to cover the following:

• Picking up any preliminary issues (e.g. language problems);
• A discussion about the facts of the case;
• Ideally, some discussion about the strengths and weaknesses;
• Ideally, a view about the prospects of success;
• Confirming the format for the trial;
• Discussing the process of giving evidence (in a neutral and appropriate way);
• Giving the witness a chance to refresh their memory of their witness statement.

This is the bare minimum, in my view, for the client to know what they are about to face. A client who has not had an effective discussion with their barrister is effectively flying blind.

The judgment from the appeal states as follows:

“Mr Nadeem (then the claimant) was represented by counsel whom he had only met shortly before the hearing (entirely consistently with my own experience at the junior personal injury bar).” [paragraph 48]

I suspect many junior personal injury barristers will have experience of clients being told to arrive 30 minutes before the hearing, which (once they have found parking, got to the court, got through security, and so on) ends up being more like 10 minutes. This results in a flustered client, and a barrister who cannot do their job effectively.

[7] The ability of the Claimant to take part appears to have been limited by language

For a long time, it was not possible for Solicitors acting for Claimants in lower-value cases to recover the cost of translation. This was due to yet another quirk in the drafting of the costs rules (see the discussion in Santiago v MIB [2023] EWCA Civ 838). The effect of this was that many Claimants which needed the help of a translator did not get it. This is an easy way, in my view, to generate miscarriages of justice.

Nadeem appears to have had English has a second language (and it is not clear what his first language was). However, Nadeem did not have an interpreter. This seems to have been unwise:

“[H]is answers to DDJ Goodman were often muddled, short and confused” [paragraph 49]

“Not only were DDJ Goodman’s findings about Mr Nadeem not the subject of proper argument by his barrister, they were based upon Mr Nadeem’s answers when giving evidence in his second language at a time when his English was less strong than it is now, and at a time where he clearly got himself into a muddle.” [paragraph 119]

It is hard to know whether the lack of translation had any direct impact on the outcome. However, it seems that much of the inconsistency which was relied upon by the Judge in support of the finding of dishonesty was actually generated through difficulties with language.

Why was there no appeal pursued?

The original decision of DDJ Goodman does not appear to have been appealed. Clearly, if it had been successfully appealed, there would be no scope for the insurer to apply for committal. As it is, the original decision (and the finding of dishonesty) remains in place, despite being utterly trashed during the application for committal.

We are left guessing at the reasons why there was no appeal. But there are again lessons for anyone who thinks an appeal will immediately fix anything which has gone wrong:

• The higher courts are in my experience quite reluctant to allow appeals where fundamental dishonesty findings have been made. It is quite easy for a barrister to end up saying that there are prospects of appeal, but below the level where an appeal is recommended;
• The application for committal involved additional evidence being provided, which helped reveal the errors in the original trial, and this would not normally happen in an appeal;
• Sometimes, when there is a finding of dishonesty, solicitors acting on a conditional fee basis will immediately break off acting for their client, which means that clients will often not have access to legal advice about whether to appeal (at least, advice they are not paying out of pocket for).

Indeed, if there had not been an application for committal, all the errors that happened during the original trial would potentially not have come to light. That is a scary thought.

What lessons does this present?

It might be tempting to think that this case is some sort of outlier. However, I can say that every one of the problems which arose in this case (the errors made by the Judge, the language issues, and so on) are ones which I have encountered in my own cases, save that I have perhaps not had such a long list of problems all cropping up at the same time. The case is therefore bad, but not an outlier.

The central thesis of this article is that there may be people who are being subject to findings of dishonesty who are innocent, and who have effectively been the victims of miscarriages of justice. The case mentioned above proves that this must be true. But how often is this happening? Is there a systemic problem which needs to be addressed?

Chris Richards
Exchange Chambers
February 2025