Stratos Gatzouris looks at the appeals in Richards & Anor v Morris (2018) ("Richards") and Molodi v Cambridge Vibration Maintenance Service & Anor (2018) ("Molodi") both of which were considered by Mr Justice Martin Spencer.
The Richards Appeal
In Richards the trial court judge had determined that as a result of a low velocity motor collision (in a reversing incident) and despite accepting that there were a number of inconsistencies in the evidence provided by the two claimants, there was enough evidence to indicate that the collision was of sufficient force to cause injury coupled with the fact that the medical expert had found spasm in the necks of the claimants. He therefore made an award of damages.
On appeal, Spencer J found that the inconsistencies were so great as not to merit any award for damages at all. There were far too many inconsistencies in the medical histories of both claimants, their attendances on their GP, the duration it took to purportedly recover and the lack of physiotherapy treatment despite a number of sessions being claimed for, which was "demonstrably dishonest".There was a string of inconsistencies in their evidence generally.
He also noted that the trial judge ought to have been suspicious about the vehicle impact given that Part 18 replies from the claimants had stated that the defendant had reached a speed of 10-15mph and 10-20mph respectively when reversing a distance of 3 feet! Judge Main had rejected the evidence of the defendant and her passenger and the appeal judge found that he had gone outside the scope of the evidence and his own proper judicial knowledge in doing so.
Furthermore, as far as the spasm was concerned, he ought to have treated the medical reports with a degree of circumspection if not suspicion especially as he had not reviewed the medical history. Spencer J determined that the trial judge had adopted a much too benevolent approach to evidence from the Claimants which was inconsistent, unreliable and on occasions "downright untruthful".
Spencer J stated that there were four possible courses of action that he could take on this appeal:
- Dismiss the appeal and uphold the decision of HHJ Main QC;
- Allow the appeal and remit the case for re-hearing;
- Allow the appeal and dismiss the claims on the basis that the judge should have found that the claimants had failed to prove their case;
- Allow the appeal, dismiss the claims and make a finding of dishonesty or fundamental dishonesty on the part of the claimants.
The appeal by the defendant was allowed but without a re-trial. The appeal judge was not prepared, however, to make a finding of fundamental dishonesty. This was because he had not seen the claimants himself and had not heard their evidence nor had he had the opportunity to assess them as witnesses. He therefore proceded with option 3 above.
The Molodi appeal
In Molodi, the same High Court judge on appeal dismissed an award for damages by the same trial judge but also made a finding of fundamental dishonesty in terms of s.57 as this was one of those rare cases where there was overwhelming evidence to make such a finding possible.
This was also a case involving a motor collision. The claimant claimed £1,300 for vehicle repair costs and then accepted in evidence that a friend had repaired the vehicle for £400. He was unable to prove that he had paid this sum. He stated his belief that he should not have to repair something out of his own pocket when the accident was not his fault. Furthermore, he stated that he had been involved in one previous accident from which he had recovered by the time of the index accident. This was untrue as he had been involved in at least 5 previous accidents. Despite these inconsistencies, the trial judge awarded damages to the claimant.
As in the case of Richards, the appeal judge found that the trial judge had been far too benevolent towards the claimant. He stated that "the medical report is at the heart of claims for whiplash injuries and given the proliferation of claims that are either dishonest or exaggerated, for a medical report to be reliable, it is essential that that the history given to the medical expert is as accurate as possible. This includes the history in relation to previous accidents as this goes to fundamental questions of causation."
Once the claimant had shown his dishonesty about this in his witness evidence as well as in his evidence before the court, it was difficult to see how the trial judge had accepted any part of the claimant's evidence. Furthermore, the claimant's dishonesty had not stopped there as he had been dishonest about his repair claim.
The appeal judge found that the claimant had been fundamentally dishonest in terms of s.57. As in LOCOG v Sinfield (2018) (see our update), so here, the defendant had proved on the balance of probabilities that the claimant acted dishonestly "in relation to the primary claim and/or related claim and that he had thus substantially affected the presentation of his case, either in respect of liability or quantum, in a way which potentially adversely affected the defendant in a significant way". Spencer J considered that the evidence of the claimant was so inconsistent and untruthful that this was a rare instance where the weight of the other existing evidence did not necessitate him having to see or hear the witness. The appeal was allowed and the claim dismissed together with a finding of fundamental dishonesty.
These cases join the now extending list of fundamental dishonesty judgments from High Court judges and which are therefore binding on others proceeding in the county courts. In both cases a tougher approach was taken by the High Court judge hearing the appeal than the county court judge had taken, and this point regarding the willingness of appeal judges to intervene may act as a reminder to judges in the county court when reaching their judgments on future claims.
The cases are a useful study as they represent appeals from the same trial judge to the same appeal judge, and are noteworthy for that aspect. The High Court decided that the trial judge had taken too sympathetic an approach in each case and as a result had fallen into error. Perhaps the message from the High Court is that whatever the judicial sympathies of the trial judge, the wording of the 2015 Act is there to be implemented.
These appeals show that appeal courts will be slow to overturn the assessment of the credibility and honesty of witnesses by a trial judge save for certain exceptional circumstances where the evidence speaks for itself as was the case with one of the appeals. In that appeal (Molodi) there was though sufficient evidence to be able to reach the conclusion of fundamental dishonesty even without hearing any further evidence.
The judgments can be found below. The Richards judgment in particular provides useful guidance and consideration of the evidential value of CNFs, LVI claims and the need for Casey v Cartwright statements that will frequently arise in this type of claim.