A fabricated loss of earnings claim was “dishonest and fraudulent”, such that the claim was fundamentally dishonest and the claimant was therefore liable to pay the council’s costs in the sum of £14,500.
The claimant alleged he was injured after he tripped and fell on the public highway. He presented a claim for loss of earnings in the sum of £26,000 on the basis of reduced income as a taxi driver. The total value of the pleaded claim against the council (including costs) was in excess of £100,000. The council’s investigations revealed that the claimant had in fact been disqualified from driving for three years and that his taxis had been transferred to new owners. On receipt of the council’s defence raising these issues, the claimant abandoned his claim for loss of earnings. However, the issue of fundamental dishonesty was left to the trial judge.
The judge did not accept that the claimant had proved his factual case although he did not conclude that the claimant had deliberately fabricated the account of the accident. Nonetheless, the judge deemed the claimant’s schedule of loss to be “wholly misleading” and concluded that the earnings claim was abandoned because “it was dishonest and fraudulent”. This impacted on the claimant’s evidence as a whole which the judge held was “so lacking in credibility overall that I can place no reliance on it”. The claim was therefore dismissed. The judge confirmed that had the claimant succeeded then the whole case would have been dismissed under s.57 of the Criminal Justice and Courts Act 2015 (the Act). The Act did not however apply because the court had not found that the claimant was entitled to damages.
The claimant argued that it would be unjust to remove QOCS protection under CPR 44.16 where he had not dishonestly fabricated his account of the accident. This was rejected on the basis that the council as a public body had been put to significant expense in investigating and defending dishonest heads of loss in a claim with a total value of around £100,000. It would therefore be “wrong in principle that the defendant should be prevented from recovering costs from the claimant.” The claimant was ordered to pay 50% of the council’s costs on an indemnity basis.
The court’s rejection of the claimant’s attempt to escape an enforceable costs order is reassuring. As confirmed in Gosling v Screwfix , the dishonesty did not need to go to the root of either liability as a whole or quantum in its entirety, rather it should be fundamental to the claim overall. The mere fact the claimant was not found to have fabricated the happening of the accident did not mean he was still entitled to the protection of QOCS.
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