Secrets And Lies: Dishonest Exaggeration In Clinical Negligence Claims

Author:Mr Mark Ashley, Stuart Wallace and Ruth Crackett
Profession:DAC Beachcroft LLP

NHS Resolution's recent success in the Lesley Elder case highlights the increasing importance of undertaking investigations where there are genuine questions around exaggeration or fabrication. In this briefing note we examine the options available to a defendant when dishonesty rears its ugly head, and we provide a flow chart which might help solicitors when faced with these issues.

Elder and Atwal: imprisonment for dishonesty

Lesley Elder brought a clinical negligence claim against George Eliot Hospital NHS Trust. Liability was admitted. Ms Elder then sought to recover compensation from the NHS of more than £2.3m. She alleged that the negligence caused her to suffer from severe pain which significantly restricted her mobility and which caused her to require care and assistance.

Sadly, Ms Elder had not been honest. Surveillance evidence showed that she had significantly exaggerated her injuries, the judge noting that without this evidence "... a terrible injustice would have been done to the National Health Service." Contempt of Court proceedings were brought as a result of which Ms Elder was sentenced to five months' imprisonment.

This is now the second time NHS Resolution has been successful in securing imprisonment of those who would seek to defraud the NHS, having demonstrated dishonesty on the part of Sandip Singh Atwal which resulted in a three-month spell of jail time.

Convictions for contempt of court come at the end of a long process, one which starts in the civil courts. Below we consider the main civil procedural approaches to dealing with dishonesty in compensation claims before going on to look at how and when to pursue contempt proceedings.

Fundamental Dishonesty and s.57

Section 57 of the Criminal Justice and Courts Act 2015 applies to claims issued on or after 13 April 2015. It provides that if a claimant has been fundamentally dishonest in relation to their claim, the claim will be dismissed unless the claimant would suffer substantial injustice.

Has there been dishonesty?

The relevant test is set out in Ivey v Genting Casinos [2017] UKSC 67, as follows: assuming the claimant does not believe their conduct to have been dishonest, then the question whether the conduct was honest or dishonest is to be determined by applying the objective standards of ordinary decent people.

Is the dishonesty "fundamental"?

Adopting the principles set out in LOCOG v Haydn Sinfield [2018] EWHC 51, one must then apply the following tests:

Has the claimant acted dishonestly in relation to their primary claim? For our purposes, "primary claim" would include the claim for damages. Has the dishonesty substantially affected the presentation of the case in a way which potentially adversely affects the defendant? In Sinfield the presentation of a fraudulent claim for...

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