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David Boyle obtains Order striking out claim and engaging CPR44.15 after trial. The Claimant’s late change of case was not only fundamentally dishonest, but an abuse of process and conduct likely to interfere with the just disposal of the proceedings

Claimant’s material change of evidence on central issue in case deemed conduct likely to interfere with just disposal of proceedings, leading to strike out and enforceable costs under CPR44.15

David Boyle obtains Order striking out claim and engaging CPR44.15 after trial on the grounds that a late change of case by the Claimant was not merely fundamentally dishonest, but an abuse of process and conduct likely to interfere with the just disposal of the proceedings: Rakowski v Chemflex Limited, Birmingham County Court, HHJ Ingram (18 & 19 May, 18 June and 20 July 2021).

The Claimant, a Polish national with limited English (who gave evidence through an interpreter so skilled that he could provide simultaneous translation), was employed as a casual labourer to undertake one day’s work at the Defendant’s bathroom showroom. Sometime after lunch, he sustained catastrophic injuries to his left (non-dominant) hand leading to the complete loss of all four fingers. The circumstances of the accident and the injury were in issue and the matter fell to be tried on the preliminary issue of liability.

The Claimant’s case was that he had been given a hammer and told to partially demolish a concrete panel fence between the rear of the premises and an overgrown embankment leading down to the local canal. There was no issue that the Claimant was found with his hand trapped in the fence, but the Defendant denied any need to repair the fence, or giving him any instructions to that effect, or supplying him with a hammer. It was agreed between the parties that if the instruction had come from the Defendant, its servants or agents, primary liability would attach, whilst if it did not, the claim would fail. The identity of the person giving the instruction (if any) was thus central to the case.

The Claimant’s witness statement stated that the person instructing him to undertake work on the fence was the owner of the Defendant company. In the witness box, before confirming his statement, and without prior warning of the impending change in evidence, the Claimant averred that the instructions had actually come from a man wearing blue overalls, who wasn’t the owner, Mr Omer, (who had already left the premises to price up a job), or Mrs Omer (who was clearly not a man), or the manager, Mr Fareed (who did not wear overalls, preferring a suit in his role as a salesman). The Claimant maintained that this man must have been employed by the Defendant: Who else would have been there to give him the instruction and/or the hammer?

Having reserved judgment, HHJ Ingram delivered an oral judgment on 20 July 2021, concluding that the man in the blue overalls was, indeed, a dishonest invention by the Claimant when faced with the Defendant’s witnesses, rendering the claim fundamentally dishonest. More importantly, she also concluded that the very specific circumstances in which the new evidence came to light, when the Defendant could not conceivably respond save to deny in the face of the Court that any such man existed, was conduct which served to obstruct the just disposal of the proceedings. The Claimant had already taken the opportunity to amend his pleadings shortly before trial. In the circumstances, it was not simply a matter of dismissing the claim as fundamentally dishonest and then considering the enforceability of costs under CPR44.16, but rather, it was appropriate to strike out the claim as an abuse of process, triggering enforceability under CPR44.15.

The Order (wording agreed by the parties) made it clear what even if the matter had not been struck out, the claim would have been dismissed as having been fundamentally dishonest, which would have led to the same result on costs, and that the Claimant had not actually come up to proof in any event.

Comment: This is a particularly unusual set of circumstances and a particularly unusual but pleasing result for the Defendant and its insurers, representing, as it does, another method by which to defend an unmeritorious claim There is certainly scope for the application to be made earlier, and more specifically at the end of the Claimant’s evidence. There may also be circumstances where the claim is not, in itself, fundamentally dishonest, but the conduct is similarly seismic in its effect. Whether the Court will entertain a similar application in those circumstances remains to be seen.

David Boyle was instructed by Sarah Ezzat of Weightmans on behalf of Ageas Insurance.

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