“Lord, Lord, how this world is given to lying”
(Henry IV, Part 1, Act 5, Scene 4)
Much has been written about claimants and strike outs for fundamental dishonesty. I am, however, unaware of any claim that proceeded as the one which is the subject of this review.
This case is a salutary lesson in the dire consequences to those who lie, and (forgiving the immodesty as I was part of the legal team) how a good strategy from the start can yield spectacular results.
Private Burman – who I can name in this piece – was an Army engineer involved as a passenger in a minor car accident in 2014. Liability was admitted. He suffered from whiplash and an undiagnosed shoulder condition. As a result of the shoulder injury, the Claimant was discharged from the Army in 2017. Medical examination by the Defendant’s expert orthopaedic surgeon suggested the Claimant had a genuine problem.
In his personal injury claim, the now civilian Mr Burman claimed for future loss of earnings, alleging that he would have remained in the Army for 24 years, would have had a number of promotions, and said that he had suffered a significant loss of pension because he had been discharged early (the Army has a generous pension scheme). The Claimant’s position was that he could work in the construction and building trades, but that he could not manage some of the heavier aspects of that work. His initial claim was for over £150,000 of future loss of earnings, an unquantified future pension claim, and £230,000 of domestic care and assistance. The insurers were looking at a claim of nearly £1 million when costs were taken into account (there were experts in employment, pensions and pain, for example).
The Claimant omitted to mention in any of this that he had used the skills acquired in the Army to set up a tiling and property maintenance business in Doncaster, marketed via Facebook. This had been discovered by insurers quite early on. There was also some helpful – but far from devastating – surveillance showing the Claimant doing manual labour (although he had not said that he could not do any of that sort of work).
An early decision was made to see how far the Claimant was prepared to go before we disclosed what we knew. Unusually, a Part 18 request was made in the first stages of the case, which asked a question that would come back to haunt Mr Burman – “did you do any other paid work between leaving the Army and [specified date]?”. The Claimant replied, “no”. He made no mention of his tiling and maintenance business then, in his disclosure or in his various witness statements, and nor did he say anything to his (or the Defendant’s) medical and financial experts.
This was, therefore, not so much a question of if we were going to plead fundamental dishonesty, but when. Timing, as the reader will appreciate, is critical in these decisions. On this occasion, the Amended Defence was drafted after the Claimant had seen all the experts, and had updated his Schedule of Loss (having previously replied to the Part 18 Request, of course).
The Claimant’s reaction to the Amended Defence probably ended any prospect he had of being able to persuade the Court of anything – he took down the Facebook page of his tiling business. He also opposed – and lost – the application for specific disclosure of all of bank statements, financial records (such as they were) and his Facebook postings. He lied about the contents of the postings, saying that some of them showed work being done for friends, or for free. A detailed comparison of the dates of those postings with the bank statements showed money being paid to him by customers – “great job, well done” etc.
The Claimant’s offers to settle tumbled with every month as the trial date approached. Eventually, days before trial, the Claimant sought to discontinue his claim – he knew that the game was up, and that it was likely that his claim would be struck out as being fundamentally dishonest. He was desperate to avoid an application for costs under CPR 44.16, and any application for committal for contempt of Court. However, because the Claimant had received a modest interim payment at the start of the claim, he could not discontinue without the Defendant’s consent, which the Defendant did not want to give as this would allow the Claimant to simply walk away.
An agreement was reached allowing the Claimant to discontinue on the basis that the Claimant admitted, in open correspondence, his dishonesty – the open nature of the correspondence allows me to name Mr Burman. His admission said this:
“The Claimant admits that what started as a genuine claim for personal injury came to be tainted by his fundamental dishonesty, in particular by his failure during the course of the litigation to disclose his earnings generated through his trading as XXX on Facebook”.
Insurers were more than content with that. The Claimant, I imagine, less so.
The lessons (re)learned:
- The importance in higher-value FD cases of putting a strategy in place early;
- At the same time, being flexible (hence the letter of admission);
- Timing is everything.