In Kirsty Williams-Henry (by her mother and litigation friend Christel Williams) v Associated British Ports Holdings [2024], Mr Justice Ritchie deprived a claimant, who had suffered a moderately severe brain injury, of all of her damages on the grounds of her fundamental dishonesty. DWF and Crown Office Chambers were instructed on behalf of successful defendant.
Background
On 21 July 2018, the claimant fell from Aberavon breakwater (widely reported as a “pier”). She had gone there to see spectacular bioluminescent plankton and sustained injuries to her ankle and hip, together with a significant head and brain injury.
Despite sustaining serious injuries, the claimant made a remarkable recovery and by November 2018 had begun a phased return to work, resuming a complex IT role within Admiral Insurance.
The claimant also resumed many of her pre-accident social activities; including holidays, attending music concerts, and going out with friends. In 2020, she completed an application for life insurance, in which she indicated that she had almost fully recovered from her injuries.
Despite her excellent recovery, the claimant then applied for benefits and stated in her application that she was unable to walk more than 20 metres, needed a wheelchair, and could not go anywhere without her mother. She repeated these assertions when renewing her benefits application in the years following the incident.
Liability for the incident was agreed on a 2/3 basis in the claimant’s favour. An interim payment was made, which was used to fund an initial needs assessment, in which the claimant reported a largely fabricated list of problems (and which the case manager failed to cross-reference against her records). A payment on account of costs was made; that payment was ordered to be repaid by the claimant’s solicitors after the claim was dismissed. The claimant’s representations in the INA were similarly reflected in her own expert evidence, and when she was examined by the defendant’s experts.
Defendant's robust challenge of evidence
The defendant’s concerns were piqued when the claimant served a statement in which she had said she had “no nights-out, no holidays and no social life”, contrary to her social media showing that she had recently been to Benidorm for a friend’s hen-do (a lie which the Judge would later describe as a “large stick with which to beat the claimant” at trial). A course of surveillance was undertaken, which showed (amongst other things) the claimant driving long distances, and packing away her walking stick after a medical appointment, before walking around Liverpool Christmas market.
Once the defendant’s experts had had an opportunity to consider the investigation's findings these were served on the claimant. That same day, the claimant served a care report, which supported a claim for care estimated at £8m. Had the claimant's deceit not been uncovered, we estimate that a claim of around £11.75m (gross) would have been advanced.
Subsequent disclosure requests revealed the claimant had taken out a car insurance policy as the main driver of a cousin’s manual car, despite having already obtained an automatic car through the Motability scheme.
Trial and finding of fundamental dishonesty
The claim was pursued to trial, which took place before Mr Justice Ritchie over a period of 11 days.
The court found that the claimant had lied on many occasions, in evidence which he described as "some of the least impressive that I have ever heard".
Not only did the Judge find that the claimant had lied; he held that her mother (a senior NHS A&E nurse) had also lied in multiple aspects of her evidence – particularly, when completing forms for benefits on the claimant’s behalf.
When challenged in relation to the completion of those forms, the court was told that a family member, a DWP employee, had recommended the forms be completed in that manner. That person was ordered to come to Court; having done so, the Judge found that she “was simply trying to help Miss. Williams explain the lies that Miss. Williams had put on the DWP form.”
The Judge found the claimant had been fundamentally dishonest, such that he was obliged to dismiss the claim in accordance with s57 Criminal Justice & Courts Act 2015 – unless he found that would result in substantial injustice to the claimant. The Judge considered the previous decisions on the issue; and set out a new test on the issue. He recommended that 8 factors be taken into account:
- The amount claimed, when compared with the amount awarded;
- The scope and depth of dishonesty;
- The amount of additional work the dishonesty has caused each party;
- The level of the claimant’s genuine disability;
- The nature of the defendant’s negligent act;
- What costs order might be made, if the claim were not dismissed;
- Any interim payments, and whether they should be repaid;
- The effect dismissing the claim might have on the claimant.
The Judge weighed these factors; and noted that he did not have to order the claimant to repay the interim payments. Having balanced the factors, he concluded that it would not result in substantial injustice to the claimant in denying her claim. He said:
"I know it looks like a large sum of money to deprive a genuinely injured person of, but... parliament sought to stamp out dishonesty which is fundamental in personal injury claims and the claimant has breached this law …
"Finally, I take into account that the claimant was wholly unrepentant when she gave evidence and had sought, in parallel, to defraud the Department for Work and Pensions and Legal & General insurance about her disabilities."
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