Howard Cohen recently won an application seeking a finding of fundamental dishonesty in order to enforce costs against a Defendant, following the Claimant’s discontinuance of her claim against her, just 3 days before trial was due to commence.
The Claimant, Mrs. L, was a friend and paid carer for the Defendant, Mrs. D, who suffered from an advanced form of multiple sclerosis. Mrs. L alleged that whilst transferring from her shower chair into her wheelchair following her morning shower, Mrs. D fell to the floor because, ignoring prior warnings, she had failed to activate the wheelchair’s brake. Whilst attempting to lift Mrs. D from the floor, Mrs. L alleged that she sustained a back injury and claimed damages.
Within her defence, Mrs. D denied that she had ever fallen in the shower, denied that she ever needed Mrs. L’s assistance to shower (her husband was always available to help her with this aspect of her personal care) and averred that the alleged accident was entirely fabricated.
The matter was due to go to trial on 26th May 2017. Just three days before, a notice of discontinuance was served on Mrs. D’s Solicitors without any explanation or reason given. Because of the standard QUOCS rules, Mrs. D would not normally have been able to recover costs, at that point calculated in the sum of around £30,000. Mrs. D’s Solicitors therefore made an application seeking a finding of fundamental dishonesty in relation to Mrs. L’s conduct and a consequential declaration that the standard QUOCS rules be disapplied, pursuant to CPR 44.16(1).
At the hearing of the application, Mrs. L (who had not previously responded in writing), attended and permission was granted to cross-examine her. The reason she gave for the discontinuance of the action so close to trial was that she herself had been in hospital in May 2017 and was later diagnosed with MS. She told the Court that she was simply in no position to litigate in that state. However, she was unable to prove her diagnosis either at the application hearing, or at the adjourned hearing, later convened specifically to enable her to prove the truth of her allegation. Furthermore, it was plain that this account of the discontinuance came as a huge surprise to her legal representatives in Court. Her Counsel told the Court that the discontinuance came soon after a conference had taken place at which discussions centred only upon the merits of her claim. There had been no discussion of any health problems.
Following detailed cross-examination of Mrs. L, the District Judge made a finding that her claim had been fundamentally dishonest, that any injuries that she complained of had been related to earlier and/or unrelated matters and that the QUOCS rules should be disapplied. She was ordered to pay Mrs. D’s costs, by now sought in the sum of over £43,000, with a payment on account of £25,000.
The particularly egregious feature of this case was the fact that Mrs. L was prepared to bring a wholly fictitious claim against her one-time friend, Mrs. D, whose MS was so advanced by the date of trial that she was unable to attend Court or provide any further written evidence in support of her defence. The stress and worry that the litigation would have caused such an ill woman was something particularly deplored by the Judge.