Fundamental dishonesty – the claimant’s conduct, discontinuance and QOCS
KR v Dorset County Council 
This matter, in which Dolmans successfully represented the Defendant local authority, illustrates that the Court has the power to make a finding of fundamental dishonesty, following discontinuance of a claim, without hearing evidence from the Claimant. The Claimant’s conduct will, in certain circumstances, be sufficient for the Court to dis-apply Qualified One-way Costs Shifting (QOCS) so that a Defendant can recover their costs from the Claimant.
The claim related to an alleged tripping accident which took place on 10 September 2013. The Claimant, aged 43 at the time, claimed that at approximately 10:30pm, he was running along Barrowfield Close in Burton Bradstock in Dorset, when his right foot went into a deep pothole and caused him to fall.
The Claimant was taken to Dorset County Hospital by ambulance and was diagnosed as having suffered a ruptured right Achilles tendon and a fracture to his left little finger. The claim was brought against Dorset County Council (the highway authority) on the basis that the council had failed in their duty to maintain the highway under s. 41 of the Highways Act . The Claimant claimed general damages for pain, suffering and loss of amenity, as well as special damages which included claims for loss of earnings and care and assistance.
Both we and the local authority had doubts about the claim from the outset. There were inconsistencies between the documents produced on behalf of the Claimant and peculiarities in the claim generally. The letter of claim, dated 9 October 2013, stated that the Claimant’s partner had called into the Claimant’s property to pick up a key at around 4:00pm (in contrast to 10:30pm as pleaded in the Particulars of Claim). It said that the Claimant, realising that his partner had left without the key, suddenly dashed outside in an attempt to give her the key. As she drove off, his foot landed in a pothole and he sustained injury.
The medical evidence described how the Claimant was walking outside his house, yet the medical records referred to him having been running. The Claimant’s photographs showed a defect in the carriageway which was positioned just to the right of a kerb and it was unclear as to how the Claimant’s right foot could have been injured. The local authority also speculated that, based on his photographs, the pothole may have been “dug out” rather than having developed over time.
Access to the Claimant’s full medical records, including the ambulance, GP and hospital records, was requested. A Part 18 Request for Further Information was raised which queried the circumstances of the accident and the claim for special damages. The Claimant confirmed that his ex-partner (giving only her first name) had provided him with care and assistance, and although we requested her full name and contact details, the Claimant’s solicitors refused to provide the same. The parties exchanged correspondence in relation to this issue, which culminated in an Application to the Court (see below). The Claimant’s solicitors were also not prepared to provide the medical records until standard disclosure. The GP and hospital records were finally disclosed, but we renewed our request for access to the ambulance records.
The parties exchanged Witness Statements and the Claimant’s Witness Statement said that his ex-partner had called at his property to drop off a key (as opposed to collecting a key) and put it through his letterbox as she was unaware that the Claimant was at home. He said that he dashed outside his property to give his partner some paperwork (rather than a key) and chased after her as she was driving away. No Witness Statement was produced from the Claimant’s ex-partner. The Claimant did, however, produce a Witness Statement from MB, a local tradesman, who claimed that he had seen the pothole when he was working in the area shortly before Christmas 2012. Online enquires identified that the Claimant and MB were friends on Facebook.
We raised a second Part 18 Request for the full name and contact details of the Claimant’s ex-partner, but when our request was not answered, we submitted an Application to the Court. Whilst the Application was being processed, we received the Claimant’s signed authority to obtain his ambulance records. Our Application was successful and the Court ordered the Claimant to respond to the Part 18 Request within 7 days, but the ambulance records, which had arrived in the meantime, provided a contact number for the ex-partner who was listed as the Claimant’s next of kin. Upon contacting the Claimant’s ex-partner, she shed a completely different light on the circumstances of the accident. She provided a signed Witness Statement, dated 9 August 2017, which contained the following:
"The Claimant is my ex-partner. He was abusive towards me and I ended our relationship. He continued to harass me and I obtained a Court injunction against him nearly 3 years ago. On 10 September 2013, I was returning a key to his house because he had been abusive. My sister drove me to his property on Barrowfield Close and waited in the car at the end of the road so she could not be seen. I posted the key through his letterbox and started to walk away. The Claimant opened the front door. I saw him over my shoulder and started running. He ran after me along Barrowfield Close. I had nearly reached my sister’s car when he reached out his hand to try and grab me. I think he was startled having seen my sister. It was as he tried to grab me that he fell over. He had nearly caught up with me. He tripped over his own feet. He definitely did not fall as a result of a pothole in the road. I did not see any pothole in the vicinity of where the Claimant fell."
A flurry of activity
The Trial was listed for 23 August 2017 in the County Court at Weymouth, so we made an urgent Application to rely upon the Witness Statement of the Claimant’s ex-partner and for permission to call her to give evidence at Trial. We pointed to the Claimant’s solicitor’s refusal to provide access to the ambulance records and/or contact details for the Claimant’s ex-partner as the reason for late service of the Witness Statement. The Application and Witness Statement were sent to the Claimant’s solicitors on 12 August 2017.
The Court confirmed, on 14 August 2017, that our Application could not be dealt with until the morning of Trial. On 15 August 2017, we received a Court Order which stated "Witness Summons for MB be cancelled". The Claimant’s ex-partner also telephoned us, in a petrified state, to say that the Claimant had been calling her, in breach of the Restraining Order, and she had called the police. We understand that the Claimant was arrested, released on bail and subsequently received a conditional discharge for 6 months as well as various fines. Importantly, the Restraining Order was extended for a further 2 years.
On 16 August 2017, the Claimant discontinued his claim. The following day, we made a third Application to the Court to either set aside the discontinuance (so that the claim could proceed to Trial on 23 August 2017) or, alternatively, for an Order that the Court was satisfied, on the balance of probabilities, that the claim was fundamentally dishonest and the QOCS exception applies. We referred the Court to paragraph 12.4(c) of the Practice Direction to CPR 44 which specifies : "Where the Claimant has served a Notice of Discontinuance, the Court may direct that issues arising out of an allegation that the claim was fundamentally dishonest be determined notwithstanding that the Notice has not been set aside pursuant to rule 38.4."
We sought to rely upon the turn of events outlined above as evidence of fundamental dishonesty and submitted that if the Claimant was allowed to discontinue his claim, in reliance upon the QOCS provisions, this would produce a manifestly unjust result for the local authority as considerable costs had been incurred in defending this claim.
Unfortunately, the Court processed the discontinuance and vacated the Trial date before our Application was referred to the District Judge. The Application was listed for a hearing on 31 October 2017.
Application - fundamental dishonesty
The Application was heard before Deputy District Judge Jolley in the County Court at Weymouth on 31 October 2017. Both parties were represented by Counsel and the Claimant’s ex-partner attended for the purpose of giving evidence, if necessary.
The Claimant was not in attendance. His Counsel submitted that the Claimant’s aunt had died and he was away in Kent dealing with her affairs. Counsel for the Claimant opposed the Application. He submitted that there are often tactical considerations by insurers/solicitors, relating to prospects of success behind a discontinuance and, as such, the discontinuance should remain. His alternative position was that if the Court was persuaded to set aside the discontinuance, the Claimant would want to have his day in Court to explain himself, where his ex-partner could also give evidence, rather than leave the Court to make a finding on the papers.
The Judge, ruling in favour of the local authority, made the following comments in her Judgment:
"There is no direct evidence whatsoever as to why he discontinued and why he is not here today. I am going to have to determine this Application on that basis."
"The Defendant has provided a chronology of events which outlines what occurred before the Notice of Discontinuance was served. That relates to a Statement provided by the Claimant’s former partner which provides a completely different account. There was also the cancellation of the Witness Summons for MB and the Claimant had tried to contact his former partner in contravention of the Restraining Order. There is no direct evidence from the Claimant as to why the Notice of Discontinuance was served. This occurred on 16 August 2017 and the Claimant has had over 2 months to consider his position and explain why he discontinued his claim. The Claimant has not attended this hearing today and I am told that his aunt has died, but it could have been suggested that this afternoon’s hearing be adjourned. No such application was made, the Claimant is not here and he has filed no evidence whatsoever."
"The Court has the power to deal with the Application this afternoon. It would not be proportionate to put this off to another day. I do not consider that it is proportionate to set aside the Notice of Discontinuance to allow the Trial to proceed. The Defendant has incurred considerable costs and will have the further cost of a Trial if I were to set aside the discontinuance. In the absence of a response from the Claimant, I do have sufficient evidence to consider making a finding of fundamental dishonesty. The circumstances in which the Notice of Discontinuance was served as well as the differences in the evidence from the ex-partner and the Claimant would lead the Court to consider that, on the face of it, there is fundamental dishonesty. In this case, despite ample time since the Application was made, nothing has been made by the Claimant to counter the suggestion of fundamental dishonesty. I, therefore, make the finding, on the balance of probabilities, that the claim is fundamentally dishonest. On that basis, I order that the exception to QOCS under CPR 44.16(1) applies."
The Claimant was ordered to pay the local authority’s costs of the claim, assessed in the sum of £11,985.05, and a previous Costs Order in favour of the local authority (in relation to the Part 18 Request) was made enforceable. The local authority is currently in the process of enforcing the Costs Orders against the Claimant.
This case illustrates that there is often no smoke without fire. Our initial suspicions in this claim proved to be correct, but it was our persistence, in applying for the ex-partner’s details and the ambulance records, which resulted in the finding of fundamental dishonesty and the local authority being able to recover their costs. The Claimant’s ex-partner also played a pivotal role in what were very difficult circumstances for her. She was understandably reluctant to get involved when we first spoke to her, but in the end she felt compelled to “do the right thing”.
A couple of other interesting points arise from this case. The first is that Courts are, in certain (and rare) circumstances, not averse to make a finding of fundamental dishonesty without hearing oral evidence from a Claimant. This approach should be considered in the context of guidance issued by HHJ Gosnell and HHJ Maloney respectively in the unreported cases of Rouse v Aviva  and Gosling v Screwfix . No two cases are the same and every case will turn on their own facts. The second issue is whether a claim being discontinued, in a QOCS landscape, effectively draws a line under the matter. Courts can, and will, consider all the circumstances of the case (including the timing of a discontinuance) to determine the issue of fundamental dishonesty and make an order for costs without requiring that the discontinuance be set aside and defendants should therefore always consider similar applications in appropriate cases.