09 May, 2016
A finding of 'fundamental dishonesty' has been made in the case of James v Diamanttek Ltd. The Claimant, a factory worker, alleged that whilst working as a diamond driller and plant operator between 2003 and 2013 he had not been provided with any hearing protection.
At trial, the Insurer was able to show that the Claimant had in fact been supplied with personal protective equipment throughout the entire period of his employment.
The claim was therefore dismissed but the Judge refused the Defendant's application to remove the Claimant's QOCS protection. Despite finding that the claimant had not been "telling the truth today", he stopped short of ruling that the Claimant had been "fundamentally dishonest".
The Defendant appealed the decision arguing that the trial Judge had made an assessment of the claimant's 'overall character' rather than applying the rule 44.16(1) test, i.e. whether on the balance of probabilities the claimant was "fundamentally dishonest".
His Honour Judge Gregory heard the appeal and agreed that the test set out in rule 44.16(1) had been met. The Claimant's allegation that he had not been provided with ear protection was 'fundamental' to the case. The Claimant had lied about a key issue, the test was therefore satisfied and the Court ordered that the QOCS protection be removed.
If the Claimant's claim had succeeded he would have been awarded around £10,000 in compensation. It is encouraging that on Appeal, the Court saw sense and found that the Claimant had been fundamentally dishonest. This case provides useful guidance for Defendants, it is clear that Judges are not prepared to make a finding of 'fundamental dishonestly' blithely. Any dishonesty must be substantial and go to the very root of the claim.