A council has failed in an appeal over a judge’s decision that a personal injury claimant had not been fundamentally dishonest in relation to his claim.
On 8 October 2020 His Honour Judge Murdoch had determined that Westminster City Council should pay the claimant £125,321.33 in damages for personal injury, and costs on an indemnity basis following the local authority’s rejection of the claimant's Part 36 offer.
The central issue in Elgamal v Westminster City Council  EWHC 2510 (QB) concerned HHJ Murdoch’s decision that the claimant had not been fundamentally dishonest, and that accordingly the provisions of s 57 of the Criminal Justice and Courts Act 2015 were inapplicable.
On behalf of Westminster, it was contended that the judge had found the claimant to have been dishonest, and that he should also have determined that he was "fundamentally" dishonest.
On behalf of the claimant, it was initially accepted that the judge had found the claimant to have been dishonest, but in the end submitted that there was no such finding, and that the High Court should not find dishonesty when the judge had declined to do so. It was also submitted that any dishonesty, even if established, was not sufficiently fundamental so as to bring the provisions of s 57 into play.
If the defendant's appeal failed on the central issue, then a further issue arose as to the way in which the judge dealt with the costs of the proceedings. The award of £125,321.33 comfortably beat the claimant's Part 36 offer made shortly before the trial and the judge determined that the defendant council should pay costs on an indemnity basis from an appropriate date thereafter.
Westminster contended that the judge should not have reached that decision, because he failed to take into account the manner in which the claimant had exaggerated his claim.
The claimant's claim arose from an accident which he suffered on 27 January 2012. He injured himself on equipment, known as an air track, at the council’s gym in London. He performed a "flip", landed awkwardly, and violently twisted his left knee. Liability for the accident was compromised at 65% in the claimant's favour, and the award of damages of £125,321 therefore reflected a 35% deduction for contributory negligence.
At the time of the accident, the claimant was aged 22 and had been heavily involved in the sport of "free running". He also enjoyed parkour. In 2008, he competed at the World Championships for free running, and was ranked 8th. He had worked on a number of film projects as a trainee stunt man, and it was his intention fully to qualify as a stunt man and then to develop his career in that role.
Mr Justice Jacobs said there was no dispute that his injury put paid to any potential career or earnings as a stunt man. “The injuries sustained were a complex multi-ligamentous disruption of the ligaments of his left knee. The Claimant underwent a series of operations to reconstruct the posterior lateral corner of his left knee and anterior cruciate reconstruction.”
Westminster’s case on fundamental dishonesty concerned the alleged exaggeration of the claimant’s symptoms, including the manifestation of a limp, to the defendant’s expert orthopaedic surgeon and others.
HHJ Murdoch found that it followed from surveillance footage obtained by the defendant that the level of limp exhibited to the doctor was an exaggeration. However, in his assessment of dishonesty, the judge said:
"What do I make of this claim?
The claimant clearly in his evidence believes that he is disabled to a greater extent than I have found. He gave clear evidence that he was making adjustments to get into the car that were not visible to me. From his perspective he was not lying.
However objectively he was exaggerating and so as a fact was lying.
It is not just a case of looking at what claimant claims v what he's recovered. The reality of why he's not recovered the major head of claim, future loss of earnings is the failure to produce the evidence to establish a difference between what a stuntman earns and sedentary employment. His lies played no part in this aspect of the case.
Although I have not accepted the level of his ongoing disability and therefore found there was an exaggeration; there was an exaggeration as to the level of the ongoing disability arising from a very serious base injury.
Those findings were not fundamental to this case. They certainly did not result in a reduction in general damages to the level the defendant submitted or indeed anywhere near that level, nor did they result in a loss of a Smith v Manchester award.
The claimant was thus not fundamentally dishonest and my awards stand."
Mr Justice Jacobs said that, in his view, this was an area where, in accordance with the authorities, he should be reluctant to interfere with the conclusion of the judge.
“He [HHJ Murdoch] heard the Claimant give evidence for a lengthy period. I did not. His findings are as to a specific fact (was the Claimant subjectively lying), rather than as to an inference from facts specifically found. The authorities also establish that where a party has been acquitted of fraud, the decision in his favour should not be displaced except on the clearest grounds: see the cases cited in Locog para . All of these matters lead to the conclusion that I should not overturn the judge's finding, and should not find dishonesty in circumstances where the judge did not do so.”
Counsel for Westminster submitted that this was one of the rare cases where an appellate court should overturn that finding, if Mr Justice Jacobs were to take the view (as he did) that the judge did not find the claimant to have been dishonest.
“He said that this aspect of the judge's reasoning did not sit happily with his earlier findings of exaggeration. The judge had found objective exaggeration, and therefore the court should be willing to conclude that there was subjective exaggeration as well. The Claimant must have known, for example, that he was putting on a deliberate limp when he met the medical experts. He said that this must have been a conscious exaggeration, and that it was "absurd" to say otherwise.”
Mr Justice Jacobs said he was not persuaded by that submission.
“Judges frequently hear from witnesses who have persuaded themselves as to the existence of certain facts, but where the judge takes a very different view. Such witnesses are not, or at least not necessarily, untruthful or dishonest,” he said.
“In the present case, the Claimant had given a detailed explanation, in his second witness statement, as to why the surveillance evidence might seem to be at odds with some of the medical evidence. The essence of that explanation, as [counsel for the claimant] argued to the judge, was that the claimant was trying to adapt to his disability and live life as normally as possible.”
Counsel for the claimant had submitted to the judge that it was also appropriate to bear in mind the claimant's own subjective perception of his disability, bearing in mind that "we are dealing with an individual here who was extremely athletic before the accident occurred, capable of undertaking extreme acrobatic manoeuvres, and therefore to him, not being able to leap up the stairs in the tube station, but having to walk up them in a more …sedentary fashion, is struggling, that is having difficulty".
Mr Justice Jacobs said: “Accordingly, in my view there was evidence and argument before the judge which meant that a conclusion that the claimant was subjectively dishonest was not inevitable, and that the contrary conclusion was not absurd. Overall, I do not consider it appropriate, having not had the benefit of hearing the claimant, to reject the view which the judge formed as to the claimant's subjective belief.”
The High Court judge added: “Even if my conclusion as to dishonesty were wrong, I do not consider that the present is a case where there was fundamental dishonesty; ie dishonesty which went to the heart or root of the claims which the claimant made.”
He said HHJ Murdoch had been right when he attached importance to the fact that there had been a "very serious base injury" in the present case.
Mr Justice Jacobs said that it did not seem to him that the exaggerations alleged had an actual or potential impact on the claims advanced so as to move into the territory of fundamental dishonesty. “Put simply, they did not go to the root of the claims whether viewed as a whole or individually.”
He concluded: “The position overall is that although the judge's reasoning was brief, his judgment was ultimately sound in that, as he said, this was not a case of fundamental dishonesty.”
Mr Justice Jacobs also found that there was nothing wrong with the judge’s approach or decision in relation to costs.