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Widlake v BAA Ltd, Court of Appeal, 23 November 2009

10 December 2009
The issues

Exaggeration – exaggerated claim – lies told in litigation everyday up and down the country – what costs Order should be made?

The facts

The Claimant brought a claim against BAA for personal injuries. She had had an accident at Stansted Airport when she had lost her footing on a staircase. It was common ground that she had lost her footing because of a loose rider immediately below the top step. Liability was not in issue. The consequences of the injury were disputed. The Defendant’s case was that the Claimant had suffered aggravation for 12 months of pain in her lower back and that the appropriate award was £3,250.00. The Claimant contended that although she had had degenerative changes, they had been brought forward by 5 years as a result of the fall and that her claim justified an award of £11,000.00. Her claim as to special damages amounted to £23,906.00. On the Defendant’s case the value was £2,022.00. The Claimant instructed a consultant, Ms Porter, who wrote two reports. The Claimant told Ms Porter that she had had no past history of lower back pain and this was stated accordingly in Ms Porters reports. Subsequently, a second consultant, Mr Macfarlane, was instructed. The Claimant told Mr Macfarlane that there had been no lower back problems prior to the accident. The medical records in fact referred to severe back pain radiating to the right leg in 1999, right lumbar back pain in 2001, and sacroiliac joint pain in 2003. Both consultants addressed the possibility of illness behaviour. Mr Macfarlane concluded that whilst it was difficult to exclude malingering he felt she had genuine symptoms emanating from the sacroiliac joint and that any exaggeration was likely to be unintentional. Subsequently, the Claimant was filmed by enquiry agents on behalf of the Defendant and the Claimant was shown acting normally, as if she had no pain or disability. Meanwhile, the Claimant’s own evidence had shifted. Her initial statement said little about the effects of her fall other than the pain interfered with her keep fit exercises and that she found it difficult to bend. Her subsequent statement in December was described as “a rather more dramatic account”. The Defendant paid £4,500.00 into Court under Part 36. At Trial the Judge found that he was not impressed by the Claimant as a witness and found her explanations as to why she had not told the experts of her previous history of back problems implausible, as was her explanation of why she appeared to be acting normally in the extracts from the film. He found that she had deliberately concealed the previous history of her back in the hope of increasing the amount of compensation which she would recover. He assessed damages at £5,522.38. The Claimant had therefore beaten the payment into Court. He also concluded that the real winner of the Trial had been the Defendant. He found that the Claimant had set out to mislead her own medical experts which amounted to an attempt to manipulate the civil justice system. Accordingly, the Judge ordered the Claimant to pay the Defendant’s costs.

The Claimant Appealed.

The decision

Costs were at the discretion of the Judge and the Court of Appeal would not interfere unless the Judge had misdirected himself or had been guilty of an error of principle or had taken into account or failed to take into account a factor which should not, or should, have been taken into account or he was plainly wrong in that he exceeded the generous ambit within which there was reasonable room for disagreement. In this case the Judge had misdirected himself in his reliance on the decision of the Court of Appeal in Molloy v Shell UK Ltd and in particular in finding that this was a more serious case than Molloy. This case however did not approach the scale of Mr Molloy’s dishonesty. Moreover, the views expressed by Lord Justice Laws in Molloy as to the Court’s power when faced with “the manipulation of the civil justice system on so grand a scale” to “entertain the case at all save to make the dishonest claimant pay the defendant’s costs”. That case had been doubted in Shah v Ul-Haq and Molloy henceforth had to be treated with considerable caution.

However, in view of the misdirection, the Court needed to exercise its own discretion.

Following the decision of the Court of Appeal in Straker v Tudor Rose, the Court had to go to the Rules and apply the approach which the Rules prescribed. The first question was to decide who was the unsuccessful party. There were different approaches from the Court of Appeal comparing Painting v University of Oxford with Jackson v The Ministry of Defence and Hall v Stone. The approach of the Court of Appeal in Jackson was to be preferred, namely that the Claimant had been successful in the sense that the Claimant had established a claim for damages and beaten the payment into Court.

The Claimant had come to Court to establish her claim, which was genuine because she had suffered an injury through the admitted negligence of the Defendant. The Judgment in her favour was an indication of her stance. The authorities dealt with exaggeration as “an issue” in the case. The Rules drew a distinction between an allegation and an issue. The cases could be reconciled by treating exaggeration as an allegation relevant to the issue for the quantum of damages. Viewed in this way there was no need to determine who would be the winner of a particular issue. All the Court needed to do was establish whether it was unreasonable for the Claimant to pursue her allegation that she had suffered such pain that it justified her case that her pre-existing condition was accelerated by 5 years and that it was of the severity she described in support of her claim for general damages. If it was unreasonable then that was conduct which the Court had to take into account. The way in which regard had to be had to that conduct was to enquire into its causative effect. To what extent did her lies and gross exaggeration cause the wasting of costs? In addition to looking at it in terms of costs consequences, the Court was entitled in an appropriate case to say that the misconduct was so egregious that a penalty should be imposed upon the offending party. It was possible therefore to deprive a party of costs by way of punitive sanction.

A word of caution had to be sounded in that lies were told in litigation every day up and down the country and quite rightly did not lead to a penalty being imposed in respect of them. There was a difference between a concocted claim and an exaggerated claim and Judges had to be astute to measure how reprehensible the conduct is. Looking at the balance sheet, the Claimant had to first get her costs because she beat the payment in and was a successful party. Those costs should not include costs related to Ms Porter’s report. She had pursued her claim in an exaggerated way and the Defendant had been put to unnecessary expense. An Order for costs against the Claimant was les justified where, as here, the claimant failed to alleviate its predicament by making a proper Part 36 offer. The Claimant’s dishonesty however had to be penalised. Balancing those factors and attempting to do justice, the right Order was that there would be no Order for costs.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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