An update on the scope of fundamental dishonesty

Andrew Reynolds v The Chief Constable of Kent Police [2024]

Executive Summary

Where a claimant is found to have been fundamentally dishonest, only the causes of action that relate to their claim for personal injury can be dismissed pursuant to section 57 of the Criminal Justice and Courts Act 2015 (“CJCA 2015”). The tort of false imprisonment cannot be a claim for personal injury and cannot be dismissed under section 57 CJCA 2015, even if the claimant’s dishonesty permeated the whole of the claim. In civil actions against the police, a judge can rely on the jury’s answers to questions of fact when making a finding of fundamental dishonesty. There is no requirement that a finding of fundamental dishonesty can only be established where a claimant has relied on false documents.

Background

The claimant was arrested at his home address for making threats to kill and for breaching a non-molestation order. The claimant aggressively resisted the arrest. He was handcuffed and restrained on the floor, where he bit one officer’s thigh and kicked a second officer, resulting in further force being applied to place the claimant in the police van.

During the journey to the police station, the claimant continued to protest his arrest, repeatedly kicking the sides of the police van and covering the insides of the van with spittle. The claimant was later taken to hospital where it was confirmed he had fractured his lumbar spine. He was charged with two offences of assaulting a police officer with intent to resist arrest but found not guilty at the criminal trial.

The claimant claimed damages, including aggravated and exemplary damages, for false imprisonment, assault/battery causing personal injury and malicious prosecution. Following a 10-day trial before Her Honour Judge Brown sitting with a jury, the claim was dismissed, the claimant having been found to be fundamentally dishonest within the meaning of section 57 CJCA 2015. The jury returned their findings in favour of the police. The judge found that the claimant told “barefaced lies” on all matters material to his claim, including the extent of the force used against him, his aggressive resistance towards the officers, his denial of assaulting the officers and when he started to experience pain in his back. The judge concluded that based on the jury’s findings, the back injury could not have been caused prior to the claimant being placed in the police van because the factual scenarios alleged by the claimant did not occur.

The judge however found that section 28(3) of the Police and Criminal Evidence Act 1984 (“PACE”) had not been complied with and, had the claimant’s claim not been dismissed under CJCA 2015, he would have succeeded in his claim for false imprisonment and partially succeeded in his claim for assault/battery. The claim for malicious prosecution was dismissed by virtue of the answers from the jury.

Law

Section 57 CJCA 2015 provides that a claim for damages for personal injury (defined as the “primary claim”) must be dismissed where a court finds that a claimant is entitled to damages, but the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim. All elements of the primary claim must be dismissed, even the elements in which the claimant has not been dishonest.

An exception to this is where the claimant would suffer “substantial injustice” if the claim were dismissed, which must mean more than losing their damages for the claims that aren’t tainted by dishonesty.

Fundamental dishonesty can be described as substantially affecting the presentation of the claimant’s case, in respect of liability or quantum, where it has adversely affected the defendant in a significant way. The dishonesty must “go to the heart” of the claim (see London Organising Committee of the Olympic and Paralympic Games v Sinfield [2018] PIQR P8).

Appeal

The claimant appealed the judge’s ruling on eight grounds. He appealed the ruling on fundamental dishonesty, claiming that the judge was wrong to find that he had been dishonest simply because the jury had preferred the defendant’s version of events over the claimant’s version. He challenged whether his claim for false imprisonment could be dismissed as a matter of law, where the claimant’s dishonesty related to his personal injury. The remaining grounds included whether the police had given him sufficient notice of their arguments on fundamental dishonesty and the engagement of Article 3 and Article 6 ECHR with section 57 CJCA 2015.

Decision

The defendant successfully resisted seven of the claimant’s eight grounds of appeal, with Sheldon J providing important guidance on the scope of section 57 CJCA 2015 in civil actions against the police:

1. The claimant successfully overturned the dismissal of his false imprisonment claim. Although the claimant’s dishonesty included what he was told by the arresting officer on arrest, false imprisonment was not a claim for personal injury and could not be included as a “primary claim” or dismissed under section 57 CJCA 2015.
2. The serious findings of dishonesty were open to the judge to make having heard the contradicting versions of events and the findings of the jury. There was no reason in principle why those serious findings could not justify the judge’s decision that the claimant had been dishonest. There was no requirement that a finding of fundamental dishonesty could only be established where a claimant used false documents or fabricated an injury.
3. Where the jury had not been asked to determine the cause of the claimant’s injury, the judge was not wrong to decide the question herself. The court rejected the claimant’s submission that the judge had usurped the function of the jury.
4. A claimant must have proper warning of an allegation of fundamental dishonesty with sufficient particularisation of the matters to be relied upon. Fairness will be assessed by the specific circumstances of the case. In the instant case, fundamental dishonesty was pleaded in the Defence with detailed particulars provided before the trial commenced. A request for further information was not made by the claimant at either juncture. It was clear to the claimant what was being alleged and he had sufficient opportunity to consider and respond.
5. In considering a claimant’s Article 6 rights of access to the courts, particularly in actions against the police, or other emanations of the state, there is nothing in CJCA 2015 to indicate that section 57 cannot be applied or that the principles underlying section 57 should be different depending on the identity of the defendant.
6. The dismissal of a claim involving conduct of the State, where a finding of liability was important to hold the State accountable for any wrongdoing, will not amount to “substantial injustice” where the wrongdoing can be recorded as part of the outcome of the claim.

Comment

This case helpfully clarifies the extent that section 57 CJCA 2015 can be used where a claimant has brought a dishonest claim against the police involving personal injury. It also provides ancillary guidance on the practicalities of raising a defence of fundamental dishonesty and how it should be managed at trial.

Pleading fundamental dishonesty can be a useful tool for defendants who find themselves on the other side of an exaggerated or dishonest claim. It is an important provision for police forces to consider in claims where there is doubt as to the veracity of an injury, particularly where it may be an ancillary pleading to a claim of false imprisonment, malicious prosecution or misconduct in public office that would not otherwise attract the cost protection under QOCS.

Although any dishonesty relating to a ‘non-personal injury claim’ will not directly affect the decision to dismiss a primary claim, defendants should not be deterred from securing findings of dishonesty across the claim where they are warranted. Such findings may assist with demonstrating that a claimant will not suffer substantial injustice; be useful when defending claims for aggravated and exemplary damages (in relation to the non-personal injury claims) and can used when it comes to submissions on costs.