Keoghs Insight

Author

Matthew Charman

TV Psychic unable to predict his own downfall – “Fundamental Dishonesty” in action

Client Alerts26/04/2021

Another success achieved by esure and Keoghs, this time as a high value claim is dismissed at trial with the claimant found to have been ‘fundamentally dishonest’ pursuant to s57 CJCA 2015. At its peak the claim exceeded £700,000 in value.

The claim

Amdur -v- Krylov (13/04/2021) was an unusual case involving an individual who claimed to be an “internationally renowned celebrity clairvoyant and psychic reader” as well as a trader of high-end cars, paintings, watches etc. The claim arose from a modest rear-end shunt RTA in which liability was admitted very early on. A claim for soft tissue injuries was initially submitted via the RTA Portal, with damages limited to £10,000. However, the claim evolved over time so that when proceedings were issued in January 2018, the claim was for damages of up to £100,000, and then subsequently amended to ‘unlimited damages’.

The claimant’s case was that his injuries prevented him from working in any of the above capacity for over two years. He also claimed lost income through being unable to appear on TV and radio shows, and alleged he was unable to manage his rental property. Various other heads of loss were intimated, including extra cost of takeaway food, loss of value of his damaged car, and sales of personal items at an undervalue to cover his living expenses.

The claimant had legal representation until May 2020 at which point he chose to act in person. As trial approached he sought to distance himself from the large sums previously intimated on his behalf, maintaining that those losses were included at the behest of his solicitor.

The enquiries

Keoghs/esure disputed causation and quantum throughout. Forensic enquiries suggested that the claimant was working when he claimed he could not and accounting evidence supported this, whilst also concluding that the claimant’s accounts were ‘nonsensical’.

The decision

The Judge levied a multitude of criticisms at the way that the claim was presented. She criticised the claimant’s behaviour and lack of evidence, and described his orthopaedic evidence as ‘unhelpful’, criticising his expert, Mr Coombs, for acting as an advocate for the claimant rather than acting in accordance with his CPR35 obligations. She dismissed the claimant’s accounting evidence as ‘worthless’ and labelled his initial schedule, which had been drafted by his previous solicitor, as a “curious document”, containing figures that “appear to have been plucked out of thin air”.

Nevertheless, whilst recognising that the claimant’s evidence was “slap-dash, reckless and with a disregard for the need to prove the losses claimed”, the Judge did not believe these failings were in themselves dishonest. However, in the light of the forensic investigative evidence the Judge found that the claimant’s claim that he did not carry out any work as a psychic for two years was untrue and that this aspect of his claim was fundamentally dishonest within the meaning of s57 CJCA 2015. The Judge therefore dismissed the claim in its entirety.

Comment

An important lesson to draw from this case is the need to differentiate between claim elements that are dishonest (untrue) and claims for which there is no or insufficient evidence in support. In this case, the claimant’s pursuit of heads of loss that he could not evidence, or his failure to produce coherent accounts, were not in themselves dishonest. However, it is reasonable to assume that whilst not crossing the “dishonest” boundary, such manifestly weak claims would still wound his credibility below the water line and carry considerable force, but to breach the strike-out threshold the defendant needs to be able to establish dishonesty, for example in conflict with evidence given under a statement of truth.

It is worth keeping in mind the leading Supreme Court decision on the test of dishonesty in Ivey v Genting Casinos (UK) Ltd (t/a Crockfords) [2017] UKSC 67 which applied the following test:

  1. The Court must first ascertain (subjectively) the actual state of the individual's knowledge or belief as to the facts. The reasonableness or otherwise of his belief may evidence whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held.

Once established:

  1. The Court “must determine whether his conduct was dishonest by applying the objective standards of ordinary decent people. It is not necessary for the individual to appreciate that what he has done is, by those standards, dishonest.

In such cases, a defendant needs to persuade the Court the claimant knew that the facts were untrue, and even if he believed they were, that no ordinary decent person would come to the same view.

Steve Morrison, Head of Technical Claims at esure, commented: “esure are obviously delighted with the finding here. A lot of patience and hard work went into establishing the defence in this case - a great example of how tenacity and teamwork can pay off. Whether facing an unsubstantiated claim of potentially £100k, £700k or an unlimited amount, this is a great result for esure and our premium paying customers. This will surely send a strong message to would-be fraudsters who may be tempted into pursuing exaggerated claims against esure in the future”.