Order for costs against a Defendant where the claim failed and an allegation of fundamental dishonesty was also dismissed

In Hakmi v East & North Hertfordshire NHS Trust [2025] EWHC 2597 (KB) the Claimant, a distinguished surgeon, claimed that the Defendant had breached their duty of care by failing to offer him thrombolysis to treat his stroke on 16 November 2016.

Mr Hakmi contended that the Defendant’s failure caused him serious disability which prematurely ended his surgery practice. The Defendant disputed liability, further alleging that Mr Hakmi was fundamentally dishonest for exaggerating his physical and cognitive limitations and his claim should be dismissed under section 57(2) of Criminal Justice and Courts Act 2015.

 

David Pittway KC, sitting as a Deputy High Court Judge, handed down judgment on 13 October 2025, and dismissed both the clinical negligence claim and the claim for fundamental dishonesty.

On the issue of costs, the Defendant was ordered to pay 15% of Mr Hakmi’s costs:

133. The conclusion that I have reached is that, notwithstanding that the defendants will not be able to enforce an order for costs on the claim, I should make an order that reflects that the defendants failed to establish fundamental dishonesty on the part of Mr Hakmi. I do not accept that to make such an order, where a claimant fails, undermines the costs regime. If anything it is the converse, not to make such an order would give a defendant a free tilt at raising the issue of fundamental dishonesty. The evidence in this case was properly explored at the trial and found increasingly wanting. It would have been open to Mr de Bono to have abandoned the issue after the close of evidence, or indeed earlier, but he did not do so.

134. It seems to me that I should make an order for costs that reflects that the defendants failed to establish fundamental dishonesty. As Mr Kellar has pointed out there was unfavourable national press coverage on the first day of trial and the consequences for Mr Hakmi, as I have said above, if the allegation had been found proved, would have been disastrous for his reputation and career. In my view, the order I make should reflect a percentage of the costs from the time that the issue was raised in the defendants’ counter-schedule, which is dated 18 March 2025. I consider that Mr Kellar’s submission that it should be 25% is too high, and accept in part Mr de Bono’s submission that some of the costs would have been incurred in any event.

135. I order that the defendants pay 15% of Mr Hakmi’s costs from 18 March 2025, subject to a detailed assessment on the standard basis in default of agreement. Otherwise I order that Mr Hakmi pay the defendants’ costs of the action not to be enforced without the leave of the court.

 

Hakmi reinforces the point for defendants that alleging Fundamental Dishonesty and being unsuccessful in such allegations can have costs consequences. This can apply even where the underlying claim is dismissed on its merits. This case should be seen within the wider context of indemnity costs where allegations of Fundamental Dishonesty are dismissed and as addressed by Coulson LJ in Thakkar & Ors v Mican & Anor [2024] EWCA Civ 552, inter alia, at para 28:

… But nothing that I say there is intended to detract in any way from this statement of the obvious: that, because the making of a dishonest claim will very often attract an indemnity costs order against a claimant, a failed allegation of dishonesty will very often lead to the making of an indemnity costs order against the defendant, on the simple basis that “what is sauce for the goose is sauce for the gander”: see Tomlinson LJ in Manna v Central Manchester University Hospitals NHS Foundation Trust [2017] EWCA Civ 12; [2017] 1 Costs L.R. 89 at [42]. A defendant who makes allegations of this kind therefore runs a very significant risk that, if the allegations fail, indemnity costs will be awarded against them.

 

Analysis and review produced by Cameron Taylor, Pupil of Farrar’s Building. 

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