The Judgments in two cases of fundamental dishonesty last year shook the personal injury world. Williams-Henry and, Shaw.  I wrote about this at the time and the article can be found on my chambers’ websites. In this article, I am going to reflect on the potential liability for lawyers and that includes a Deputy acting as a Litigation Friend, especially with respect to any costs liabilities if a Claimant who ostensibly lacks capacity is found to have been fundamentally dishonest.  

The facts in Williams-Henry  

In July 2018, this Claimant, now 33 years of age, suffered a moderately severe traumatic brain injury and other multiple injuries in a nasty fall off Aberavon Pier which was insufficiently guarded by railings. The Defendant was the owner or occupier of the pier and had admitted liability which settled at 2/3rds 1/3rd in the Claimant’s favour.  

This was essentially a moderate-severe brain injury and pain case. The Claimant had undergone the removal of part of her frontal lobe. The claim was £3.5 million, full liability. The Counter-schedule admitted either £374,000 or £552,000 odd on a full liability basis.  

The Court found her to be fundamentally in the light of, contrasting DWP records, personnel records, social media depictions, extensive video surveillance and a life insurance application form arising after the accident. 

The Court found the Claimant had been dishonest. She was severely depressed by the time of trial, but this was largely as a result of her dishonesty, the allegations of dishonesty made and the impending trial and as such were largely her fault.  

Ritchie J assessed the genuine element of her damages claim as £895,000 on a full liability basis. The Court deprived her of all her damages due to her fundamental dishonesty but allowed her not to repay interim payments of £75,000. 

The Claimant lost her qualified one-way costs protection due to the fundamental dishonesty but the Court in a second case decided that the lawyers had not failed in their duties to advise acceptance of an offer. They had not done anything wrong and an application for wasted costs was dismissed.  

Shaw 

Matthew Shaw was a motorcyclist. The Defendant emerged from a side road and collided with his motorbike inflicting serious injury. Liability was no longer an issue. HHJ Sephton sitting as a High Court Judge in Manchester High Court dismissed the Claimant’s claim for assessed damages of over £1.12 million because the Claimant had been fundamentally dishonest. The Claimant has suffered serious lower limb injuries and said he could no longer walk more than 200 yards. Surveillance however showed him walking over 450 metres at a reasonable pace, going to a wall climbing centre ostensibly to climb a wall and riding his mountain bike up Snowdon and conducting a base jump recorded on social media in 2022. He said he had miscalculated the distances he could walk. This was the largest case of fundamental dishonesty where the Claimant recovered nothing. He was even ordered to repay interim payments of £150,000. 

Costs 

In both cases, the Claimant had to pay the Defendant’s costs of the action as they lost their QOCS Protection. The Defendant in Williams-Henry [2024] EWHC 2415 made a stage 1 wasted costs application against the Claimant’s Solicitors on the basis that they allowed a hopeless case to get to trial.   The Court found that drafting a witness statement which contained lies and when there was evidence available which would have exposed what the Claimant said as lies, there could be a potential liability on the part of the lawyers. In an appropriate case it is submitted this could include a professional litigation Friend/Deputy. The fact that privilege was not waived meant that the Court could not allocate blame between the Claimant and the lawyers. The Claimant had a good core claim and there was some albeit a low prospect of defeating the fundamental dishonesty. Overall, Williams-Henry suggests that the prospects of a wasted costs order against lawyers for a claim found to be fundamentally dishonest is a step too far.  

Learning from the case. 

What can practitioners, and experts, and Deputies who are Litigation Friends take away from the cases.  Here is my guide: – 

1. Walking, talking brain injury claims even when arising from very serious injuries demand caution. Don’t assume that because the Claimant, ostensibly lacks capacity, suffered a very serious injury that there cannot be serious fundamental dishonesty. 
2. If served with surveillance, take it very seriously and ask for a conference with Counsel. Keep careful file notes justifying any decision to continue the litigation.  
3. Don’t assume that collateral dishonesty in applications especially for insurance or benefits will be forgiven or attributed to the injury. Brain Injury or depression should not cause dishonesty. Collateral dishonesty is highly relevant to the impression the Court will form of a Claimant. 
4. Even in a serious injury case, you cannot ignore social media. Professional Litigation Friends should ask the Claimant’s lawyers to look at it once an initial record of the Claimant’s symptoms and condition has been taken. Keep it under review. Look at it yourself.  
5. Ensure treating and medical experts do not lose objectivity or neutrality and do not take the Claimant just at face value.  A good rule of thumb is to remember if you can’t prove your claim without the Claimant’s evidence, then you may not have a good claim. Try to join key conferences/consultations and form your own view.   
6. Don’t assume that failed performance validity testing on neuropsychological testing can always be explained or falls away. It is a relevant factor and should cause you to test the evidence in more detail. 
7. If surveillance is disclosed, the professional Litigation Friend is going to have to act carefully and probably have a conference/consultation with the Claimant and Litigation Team. Instruct the legal team that all the experts and witnesses must see the surveillance videos and social media. 
8. Deputies should ensure that their professional indemnity insurance covers potential personal costs orders arising out of being a Litigation Friend though in practice such orders should be extremely rare or non-existent.  
9. It would usually be an unwise decision to waive privilege if facing a wasted costs allegation. 
10. Check witness statements against other documents for consistency and ensure the Claimant is challenged.