The Weekly Roundup: The All Singing Edition

• Published date: 13 April 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: 1 Chancery Lane
• Author: Kerry Nicholson and Anirudh Mandagere

We are all, we hope, sticklers for ethics here, particularly when dealing with litigants in person. Which is why the judgment in Jenkinson v Robertson [2022] EWHC 756 (Admin) has saddened us to no small degree. We were greatly cheered, however, by the decision of the Court of Appeal in Chelfat v Hutchinson 3G UK Limited [2022] EWCA Civ 455, in which the refusal of the County Court to issue a claim form unaccompanied by a Form N510 was criticised in no uncertain terms; reassuring, perhaps, for those practitioners who might, for whatever reason, be issuing close to the expiry of a limitation period. And in news just in from the Court of Justice of the European Union, in Fuhrmann-2, Case C-249/13 it was determined that in order to be validly bound by an electronically formed contract, consumers must clearly understand on the basis only of the words appearing on the ordering button that as soon they click on that button they will be under an obligation to pay the supplier in question. It's been a good week for consumers generally really; in Q, R and S v United Airlines, Case-C561/20 the CJEU continued in its pursuit of a consumer friendly approach in denied boarding cases.

'The sound of silence': Jenkinson v Robertson [2022] EWHC 756 (Admin)

The Facts

The Claimant was an unrepresented litigant who had sustained personal injury in a road traffic accident. One of the injuries alleged was essentially a mid-back injury. The insurer did not accept that the Claimant had sustained this injury. The principal issue at trial was whether there was any causative link between the accident and the mid-back injury. Causation and fundamental dishonesty were in issue.

At first-instance, HHJ Christopher Dodd considered that the claim was fundamentally dishonest for the following reasons:

1. The first Schedule of Special Damage suggested that he paid someone to collect rent on his behalf. He conceded in cross-examination that he had done no such thing.
2. The Claimant had not been straightforward as to the reasons for not disclosing a radiological report until directed to do so.
3. When placed with multiple medical records contradicting his case, his reaction was to multiply the size of damages claimed by 10.

The Grounds of Appeal

The appellant submitted that (1) there had been inadequate notice of the allegation of fundamental dishonesty, (2) the judge had wrongly reversed the burden of proof and (3) the judge had been wrong in relation to each of the factors in which he based his decision. The appeal in the High Court was heard by Mr. Justice Choudhary, who allowed the appeal on grounds 1 and 3.

Inadequate notice

There was no express notice given to the Claimant in advance of the trial that fundamental dishonesty would be alleged in relation to the onset of his symptoms. While there was correspondence asserting that the claim was 'exaggerated', this was insufficient. A claim that is unreasonable is not necessarily dishonest, it may be misconceived.

The Defendant had refused to provide any particulars of dishonesty prior to trial. This was in spite of the difficulties that the Claimant, as an unrepresented litigant, would face. At trial, it was never asserted that the Claimant was being dishonest about the onset of symptoms. He was merely asked whether he had in fact suffered the pain which he now alleged. Therefore, the appellant had not been afforded adequate notice of the allegations of fundamental dishonesty.

Burden of Proof

The judge weighed the evidence, and applied the balance of probabilities test in deciding the outcome. It could not be said that he was plainly wrong in the application of the burden of proof.

Errors

The Schedule. Properly understood, the Claimant was not claiming that he had paid someone '15 per hour for 50 hours per annum. Rather, he had paid someone to collect rent for which he was seeking a 'reasonable rate' of 50 hours at '15 per hour. This was explained by a letter sent to insurers' solicitors. This letter was not disclosed at trial, nor was it brought to the court's attention. Further, there was nothing in the Defendant's submissions that would have alerted the Claimant that this was an issue that was to be relied upon in respect of fundamental dishonesty.

There was no consideration by the judge to as whether this dishonesty related to a fundamental matter in the claim, or had a substantial effect on the presentation of the case. The particular issue to which that belief related had become peripheral by the stage of trial, if not entirely irrelevant. HHJ Dodd's findings were plainly wrong.

Expert Evidence. At trial, the Claimant had been unwilling to disclose a radiological report. The reason for this was that the Claimant had been previously advised that the report may be subject to litigation privilege. This was not brought to HHJ Dodd's attention, nor was this material before the judge prior to hand down. Mr. Justice Choudhary concluded that the Claimant's actions were dictated by his beliefs as to privilege, and objectively those actions were not dishonest. In any event, the judge did not have a full picture of events.

Multiplying the damages. In his judgment, the judge alleged that the Claimant had increased his claim from '10,000 to...