Cojanu -v- Essex Partnership University NHS Trust: Update on Fundamental Dishonesty

7 April 2022

On 2 February 2022 Mr Justice Ritchie gave Judgment on Cojanu, a clinical negligence claim where the Defendant advanced a defence of fundamental dishonesty.

The Claimant brought a claim while on remand in Prison.  He arrived at prison with deep cuts to his right ring and little finger. His version of events was that his wife attacked him and while defending himself from the knife attack sustained deep cuts to his fingers.  The Defendant alleged it was the Claimant who attacked his wife and stabbed her and he sustained his injuries during the attack or while resisting arrest.  The Claimant was subsequently convicted of attempted murder and imprisoned.

The Claimant’s clinical negligence claim was that the Defendant cancelled pre-arranged day surgery at the Royal Free Hospital scheduled for 5 days after being placed on remand.  Thereafter, the Defendant delayed making arrangements for appropriate treatment.  The Claimant also alleged that he would have made a full recovery had surgery occurred within 10 days of the injury.

The Claimant’s Schedule of Loss valued the claim at £125,300.  Elements of the schedule assumed that the Claimant lived and worked in the UK despite the fact that before the schedule was served the Defendant had been deported to Romania.

At trial judgment was given for the Defendant.  The Claimant’s appeal was heard by Ritchie J on 25 January 2022.  The key points on appeal were:

1. Whether the Claimant was fundamentally dishonest as to the cause of the injury to his fingers, and

2. Dishonesty as to quantum.

Fundamental Dishonesty as to the Cause of the Claimant’s Injury

Ritchie J identified five steps to be taken by a trial Judge when faced with a defence under s.57 of the Criminal Justice and Courts Act 2015 (fundamental dishonesty):

(i) The s.57 Defence should be pleaded;

(ii) The burden of proof lies on the Defendant to the civil standard;

(iii) A finding of dishonesty by the Claimant is necessary.  This has two parts: (a) to find on the evidence what the Claimant’s state of mind was at the relevant time on the relevant matters, and (b) to apply an objective standard to decide whether the Claimant’s conduct was dishonest;

(iv) As to the subject matter of the dishonesty, to be fundamental it must relate to a matter central to the claim.  Dishonesty relating to a matter incidental or collateral to the claim is not sufficient, and

(v) As to the effect of the dishonesty, to be fundamental it must have a substantial effect on the presentation of the claim.

The Claimant’s dishonesty about his crime was not fundamental to either liability or quantum in the civil claim. Instead the dishonesty in relation to how the Claimant suffered the cut only connected with the civil claim because it impinged on his credibility. It did not affect the liability which was to be determined on expert evidence, not the Claimant’s factual evidence.

Dishonesty as to Quantum

The trial Judge’s finding of fundamental dishonesty on quantum related to two factual issues: the correct country for the assessment of damages, and value of the claim advanced in the Schedule of Loss.

Ritchie J held all the evidence pointed to the Schedule of Loss being drafted wrongly by the Claimant’s lawyers. The Defendant identified the errors in their Counter Schedule. After service of the Counter Schedule the Claimant’s lawyers did not redraft the Schedule of Loss. In her submission to Ritchie J, Counsel for the Claimant admitted the errors were hers and took responsibility for them as she did before the trial Judge. Ritchie J concluded “I do not understand on what evidence the Recorder could have found that the Claimant himself was dishonest in the way his schedule was drafted in relation to the country issue … I consider that the incorrect pleading and the failure to quantify the claim properly by the Claimant’s lawyers in the schedule is not in this case a fundamental dishonesty. It was not a dishonesty at all. In addition, on the facts of this case inadequate pleading is not within the mischief which Parliament aimed to prevent by the passing of s.57. Nor is incompetence, carelessness, negligence or mere omission by the lawyers.  The section requires proof of the Claimant’s dishonesty not his lawyers’ lack of competence. It may be a moot point whether that includes the dishonesty of his lawyers (none is asserted here) but that may be an issue for another case, it was not an issue before me in this appeal”.

The appeal was allowed with Judgment entered for the Claimant.

Practice Points

Ritchie J provides a very clear review of the law of fundamental dishonesty and identifies a five point checklist the Court is likely to follow. Key practice points arise:

1. For dishonesty to be considered fundamental it needs to go to the heart of the subject matter of the case. In Cojanu, the Claimant’s dishonesty around how he came to have injured his fingers was not fundamental to the issues in question – breach of duty and causation.

2. When assessing dishonesty the Court will consider the Claimant’s state of mind at the relevant time and then apply the objective standard to determine whether the Claimant’s conduct was dishonest.

3. A distinction is made between incompetence and carelessness on the part of a Claimant’s legal team and the conduct and belief of a Claimant.  Ritchie J attached significant weight to the fact that in Cojanu the Schedule of Loss, which pleaded future loss of earnings for a carpenter on UK based earnings data, was advanced by the Claimant’s legal team.  This claim was not derived from the Claimant’s own witness evidence. It was the legal team’s error, not the Claimant’s dishonesty. Whether such errors could be classed as fundamentally dishonest in future cases with different circumstances remains to be seen.

FURTHER INFORMATION

If you would like any further information or advice about the topic discussed in this blog, please contact Richard Lodge or our Medical Negligence and Personal Injury team.

 

ABOUT THE AUTHOR

Richard Lodge is a Partner in the Medical Negligence and Personal Injury practice and has been recognised within the field of clinical/medical negligence within the Chambers UK and Legal 500 directories.  He is an individually ranked lawyer for clinical negligence within Chambers UK, A Client’s Guide to the UK Legal Profession.

 

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