06 October, 2016
Peak v Bury Council
Bury County Court
Forbes successfully secured a finding of fundamental dishonesty after a claimant filed a Notice of Discontinuance just three days before trial.
Forbes argued that the matter ought to remain in the trial list to allow the Court to consider the issue of fundamental dishonesty. At the hearing, the defence put forward overwhelming evidence that the claimant had been fundamentally dishonest. The claimant alleged that she had sustained an injury as a result of a tripping accident on the 9th April 2014. Breach of duty was admitted by the defendant but the claimant was put to strict proof in terms of causation. Detailed enquiries had revealed the claimant had links to a claims management company and that the claimant's friend had also made claim against Bury Council following a trip in the same pothole.
In support of her case, the claimant served a witness statement and attached to that statement was a digital image of the locus. The defendant obtained expert evidence which showed that the photograph had in fact been taken on the 31st March 2014, nine days before the accident date. The defendant raised Part 18 questions of the claimant asking for her explanation about the photograph but she did not respond.
In light of the evidence, the Court found that the claimant had been fundamentally dishonest. Despite the claimant's failure to attend the hearing, the Court found that there was clear and overwhelming evidence on the papers alone. The QOCS protection was removed and the defendant was given permission to enforce an order for costs against the claimant in full.
This case demonstrates that the Courts are not prepared to allow claimants to tactically use a Notice of Discontinuance as a "get out of jail free card".
Wherever appropriate, Forbes will pursue a finding of fundamental dishonesty to secure an enforceable costs order. To make a finding of fundamental dishonesty, the Court must only be satisfied on the balance of probabilities that the claim is fundamentally dishonest. Following an application under CPR 44.16, the order made by the Court is for payment of the entirety of the defendant's costs, not just the amount that would have been awarded to the claimant.