Motorist who challenged accident damages award over ‘dishonest claim’ loses appeal

John Finlay admitted liability for the minor collision with the parked vehicle in the forecourt of a Tesco petrol filling station in Dundee in May 2011, but argued that the claim brought by Grant Grubb was a “complete fabrication”.

A judge ruled that the pursuer, who sued the defender for £500,000, was “not entirely credible or reliable” but that he was entitled to reparation of £7,321 for “pain and suffering” - a decision which has been upheld by the Inner House of the Court of Session.

Whiplash injury

The court heard that the pursuer was in the driver seat of his Subaru Impreza with his brother in the front passenger seat when the defender backed his Peugeot into the pursuer’s stationary vehicle, as a result of which he sustained a “whiplash” injury to his cervical spine and £2,200 worth of damage to his sports car.

What had been a low (4 mph) impact collision had jerked the left side of his neck, left arm and shoulder, causing “shooting pains” and “chronic adjustment order”, as well as problems with sleeping and psychological problems with driving, and he was unable to continue his work as a chef with David Lloyd leisure.

The defender admitted liability but averred that the collision occurred at a “very low speed”, adding that any vehicle damage caused by the accident would have been “minimal”.

He also alleged that the pursuer was “exaggerating his symptoms for financial gain”.

Although the pursuer had told medical experts that he had not driven since the accident, he was convicted for driving without insurance in September 2011.

He had also increased his hours of work after the accident but while off sick he was seen working on a stall in Errol Market and was dismissed for misconduct in November 2011.

In April 2014 the defender lodged a tender for £30,000, which was withdrawn six months later in advance of the proof, which had began in November 2014.

‘Fundamental dishonesty’

However, after four days of evidence a continued diet of proof required to be fixed and when the case resumed in September 2016 the defender requested that the action be summarily dismissed, arguing that, since the pursuer had been found to be “fundamentally dishonest” in relation to his claim, the action should be thrown out as an “abuse of process” and “affront to the interests of justice”.

The Lord Ordinary, Lord Kinclaven accepted that “in an appropriate case, the court may exercise a power to dismiss an action if a fair trial is impossible, or if there is a fundamental dishonesty on the part of the pursuer, or if there is an abuse of process”, but that this power required to be exercised “sparingly”, and the motion was ultimately refused because, on the evidence, the defender’s submissions based on alleged fundamental dishonesty on the part of the pursuer were “not well founded”.

In May 2017, Lord Kinclaven found in the pursuer’s favour to the extent of granting decree for payment of £7,321, as opposed to the £500,000 concluded for, the statement of valuation of £382,000 or the £183,000 ultimately sought, but added that there were “several areas” where he was unable to accept the pursuer’s evidence as credible and reliable.

The Lord Ordinary held that while the pursuer was “not entirely credible and reliable” on all matters, having seen CCTV footage of the incident and heard the evidence he did not accept the defender’s contentions that the claim was fundamentally dishonest.

But the judge found the pursuer liable to the defender in the expenses of the action, modified to two-thirds, as he was not prepared to ignore the fact that the pursuer had presented various parts of his case with a “significant lack of candour”.

‘Lord Ordinary erred’

However, on appeal the defender maintained that the Lord Ordinary had erred in refusing to terminate the proceedings summarily because they had amounted to an abuse of process.

It was argued that the evidence, which the Lord Ordinary had heard at the time of the initial motion for dismissal, ought to have led him to conclude that the pursuer was presenting a claim which was fundamentally dishonest.

The court had “a duty to intervene” and stop the case if a defender could not be afforded a fair hearing where a pursuer was dishonest within the context of an action.

On behalf of the pursuer it was contended that the Lord Ordinary had been correct to refuse to accede to the defender’s motion for dismissal after the court had heard only four days of evidence, as dismissal was a “draconian” measure, only to be exercised in “exceptional circumstances” and this was not such an exceptional case.

The pursuer also cross-appealed the Lord Ordinary’s finding on expenses, arguing that the judge had exercised hid discretion “wrongly” as the pursuer had succeeded in the action.

‘Good, but exaggerated claim’

Refusing the appeal, the judge observed that the court’s inherent power to dismiss an action summarily should only be invoked as a “last resort”.

Delivering the opinion of the court, the Lord President said: “Even if it were appropriate to dismiss a case summarily because a pursuer had been ‘fundamentally dishonest’ in relation to his action, a matter which in this jurisdiction will at least remain one dependent upon the particular facts and circumstances…, this pursuer has been found by the Lord Ordinary not to be fundamentally dishonest in relation to his claim.

“On the contrary, his contention, that he was involved in an accident of the nature which he described, was found to be accurate. It was supported by CCTV images, witnesses and an admission of liability. His claim to have been injured in this accident was also found to be a valid one, despite the defender’s contrary position…

“The pursuer did not make a fundamentally dishonest claim. He made a good, if exaggerated, claim. It would have been quite inappropriate for the Lord Ordinary to have dismissed the pursuer’s action summarily during, or at the end of, the proof.”

‘Lack of candour’

Refusing no the cross-appeal on the issue of expenses, the court observed that the Lord Ordinary’s award in favour of the defenders was “a surprising one”, given that the defenders had declined to lodge a tender after withdrawal of an earlier one, but held that the was “no miscarriage of justice”.

Lord Carloway said: “In normal circumstances, the rules applicable to tenders ought to be applied, even where the award is small (if not de minimis)…Expenses ought normally to follow success, and the pursuer was successful in that he achieved an award in his favour.

“There are exceptions to the general rule. One is where the conduct of a party has been improper (eg dishonest) or unreasonable.

“The Lord Ordinary appears to have had regard to all the relevant factors, and does not mention any irrelevant ones in adjusting the balance. He has explained, perhaps with greater force in his Opinion on expenses than that on the merits, the importance of what he politely describes generally as a ‘lack of candour’, in relation to several aspects of the pursuer’s testimony…

“The Lord Ordinary’s view was that, if the pursuer had been candid and forthright throughout, the proof would have been a short one. In all these circumstances, the court is unable to hold that there are any grounds upon which the Lord Ordinary’s discretionary decision on expenses could be successfully impugned.”