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Lies, Damned Lies, and Fundamental Dishonesty

16 Dec 2021

Imagine the following scenario: one morning you wake up and sense that something isn’t right. You are not sure what – your legs feel weak, and you lose control of your bladder. You attend hospital and eventually you are diagnosed with cauda equina syndrome (a compression and swelling of the nerves at the lower end of the spinal cord, which can lead to paralysis), and are told that along with bladder and bowel issues, you may never regain full mobility.

You approach a solicitor and make a clinical negligence claim in relation to a delay in diagnosing and treating cauda equina syndrome, which has left you unable to walk unaided and largely wheelchair dependent. The defendant hospital trust admits liability and issues you a formal apology along with a voluntary interim payment of £75,000.00.

Your solicitor tells you that the case will need to continue in order to fully value your claim. This could likely be millions of pounds based on your current condition and the potential future support required. You hear the word ‘millions’ and know that, despite the hardship you have suffered, the money could help you and your family for life. The case proceeds and you start to get better.

Whilst not all of your injuries improve, the most debilitating do. You can walk unaided whereas before you could not, you can now drive whereas before you could not. Where once you were unable to stand unsupported for more than a few seconds, you can now mobilise unaided – to the shops, on holiday – once again independently. There is relief and yet there is a nagging concern: the high value placed on your case is on the basis of you having significant mobility issues. The hospital admitted their negligence and they even apologised. What do you do?

It would be hoped that you admit to the improvement in your symptoms so that the value of the claim can be reassessed. After all, liability has been admitted and you have suffered damage, just perhaps with a lower value than previously assessed. If you did persist with the original claim, based on your original symptoms, it is worth considering the following case:

Calderdale & Huddersfield NHS Foundation Trust v Metcalf [2021] EWHC 611

This case has facts similar to the scenario set out above in that it relates to a Claimant with cauda equina syndrome. The Claimant received an interim payment of £75,000 and claimed severe mobility issues. The Claimant’s case was valued at approximately £5,712,773.40.

Clinical Negligence Newcastle

Unfortunately, the Claimant misrepresented the extent of her injuries, and following surveillance by the defendant showing the Claimant able to drive and stand unaided, the defendant amended its defence to plead fundamental dishonesty.

When confronted with this information the Claimant admitted to deception in respect of details of the claim provided to the court in her witness statements and on assessment by experts. Instead of receiving a payout of £5,712,773.40, the Claimant had to sell their house to repay the initial £75,000.00 and ended up serving 3 months in prison. Had the claimant been honest, they could instead have received a compensation award of £350,000.00.

Fundamental Dishonesty

Fundamental dishonesty is essentially as described. You must be dishonest, i.e., not just mistaken, and that dishonesty must have a fundamental impact on the claim, as described in the Metcalf case. Whilst fundamental dishonesty from Claimants is exceedingly rare it is something that Defendants are pursuing with more regularity, particularly in high value cases, through the use of tools and techniques such as surveillance.

Fundamental dishonesty has real consequences and can lead to situations as in Metcalf, where the Claimant has been injured as a result of the Defendant’s negligence but can end up with no compensation being awarded and a custodial prison sentence.

As a firm, we must remain vigilant, and ensure that clients are aware of the potential consequences of providing instructions.

It goes without saying that honesty is always the best policy. For more information or how we could help you or your family please contact Michael Taylor or any member of our Clinical Negligence team .