David Roderick successful in achieving a finding of fundamental dishonesty following a liability contested trial

In a recent trial, W v M (Wandsworth County Court, 08.09.16), David Roderick achieved a finding of fundamental dishonesty and the consequent removal of QOCS protection. The Claimant had claimed personal injury damages as a result of an RTA. The circumstances of the collision as advanced by the Claimant were, unsurprisingly, strongly disputed by the Defendant who asserted that the very opposite had happened. Liability was therefore denied. The Claimant was put to strict proof of causation in the Defence. After careful scrutiny of the Claimant’s medical records, the Defendant’s solicitors had put questions to the medical expert concerning pre-existing symptoms and the apparent lack of contemporaneous reporting of injury to the GP. Both of those features appeared to contradict the history given by the Claimant to the expert. Despite those inconsistencies the expert was unwilling to materially alter his attribution or prognosis.

On the morning of the trial the Defendant did not attend, and notwithstanding the best efforts of his solicitors it appeared that he was no longer willing to cooperate. Indemnity was not withdrawn by the insurer however, and liability and quantum continued to be resisted. The Claimant was cross-examined both on liability and his medical history. After a full trial, the Judge expressly took into consideration the fact that the Claimant had been denied the opportunity to cross-examine the Defendant, but he nevertheless found that the Claimant failed to prove the claim. It followed that no findings were necessary in respect of quantum but the Judge acknowledged he would have had grave difficulty in accepting the medical evidence. Further, the Judge accepted the submission on behalf of the Defendant that on the balance of probability the claim was fundamentally dishonest in respect of the reporting to the medical expert. The Defendant was awarded its costs on the standard basis with permission to enforce.

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