Fundamental dishonesty and abuse claims: a high bar

It is well established that section 57 of the Criminal Justice and Courts Act 2015 allows the court to strike out a personal injury claim of a claimant who would otherwise be entitled to damages if the court was satisfied that, on the balance of probabilities, they had been “fundamentally dishonest” in relation to the primary claim or a related claim. While the issue of fundamental dishonesty has previously been the subject of several judicial decisions in personal injury claims, it has perhaps understandably never been raised and adjudicated upon in the context of abuse claims, particularly given the burden is on the defendant to establish the claimant’s dishonesty, which would often be extremely difficult, if not inappropriate, without unquestionable and clear evidence of such dishonesty in the claim.

However, in the recent High Court decision in Samrai & Ors v Kalia [2024] EWHC 3143 (KB) the issue of fundamental dishonesty was raised and adjudicated upon in the context of alleged abuse. It is a wide-ranging decision and raises other issues on consent and limitation. Ian Carroll, Partner and Head of Abuse at Keoghs, considers this decision and the potential impact on other claims where fundamental dishonesty might be considered.

The claim

The case related to seven claimants who pursued claims against the defendant, Rajinder Kalia (Kalia), for alleged sexual and financial abuse. The first four claimants’ allegations related to sexual abuse and the remaining three claimants for financial abuse only. Kalia was the founder and priest of a Hindu temple in Coventry, and it was alleged he used his position as a priest of the temple to commit the alleged sexual and financial abuse upon the claimants.

Kalia denied the allegations in their entirety and alleged that all the claimants were lying and had conspired to tell lies to the court.

The matter proceeded to trial and the court found in favour of the defendant and dismissed each of the claimants’ claims (having already struck out two of the claimants’ claims for financial abuse due to procedural failings).

Consent

In relation to the first claimant, it was alleged that whilst she was an adult she had engaged in sexual activity with Kalia but her ability to consent to sexual intercourse had been compromised as her will had been overborne by the undue influence which the defendant held over her. The court agreed with the first claimant and found that Kalia’s denial of any sexual activity with her was untrue. However, applying the test for consent under section 74 of the Sexual Offences Act 2003, the court found that the first claimant had the freedom and capacity to consent to the sexual activity. While she may have been persuaded to do so, and to have allowed herself to be influenced by the Kalia’s teachings and thus consent, this did not give rise to an action for damages.

In relation to the remaining three claimants who alleged sexual abuse, the court rejected their evidence and found that they had not been sexually assaulted by the defendant.

Limitation and credibility

In respect of each of the claimants, the court refused to exercise its discretion to allow any of the claims to proceed. This was on the basis that the court did not consider that the claimants were credible witnesses and their conduct in their claims meant that it would not have been equitable to allow their claims to proceed.

Some examples were provided as to why the claimants’ claims were not deemed to be credible, including:

• A failure by claimants to disclose medical records because it was inferred that those records would have contained relevant material.
• The court found it untrue that one of the claimant’s mobile phones had been lost in a cinema shortly before the deadline of the court’s order for specific disclosure of the phone. This included a finding that it had been suppressed because it would have revealed contact between the claimants about their accounts and their evidence.
• A finding that one of the claimants, despite knowing there was an order for disclosure of the same, had deliberately deleted WhatsApp messages on her mobile phone. The court also found this was done in order to conceal evidence important to the case and that her explanation in evidence that she did so “because it contained details of her new job and colleagues, and she didn’t want to get harassed in her department” was untrue.
• The conduct of all the claimants who were found to have tried to persuade other witnesses to tell lies against the defendant.
• A finding that one claimant gave her evidence “from a standpoint whereby she said whatever she thought best suited her case rather than from a standpoint of telling the truth and assisting the court”.
• One claimant was found to have not told the truth but attempted to mislead the court about her reasons for leaving her job at HSBC, which she alleged in her witness statement was due to other people from the temple working there, when in fact she was under investigation by HSBC for gross misconduct.
• A finding that one claimant was “evasive, occasionally deliberately obtuse and dishonest in her evidence”.
• The presentation of schedules of loss, one of which was “patently exaggerated” and included “fictitious claims”, and another which was “significantly exaggerated and clearly inaccurate”, despite having been endorsed with a statement of truth.

Fundamental dishonesty

In view of the above issues on credibility, the defendant invited the court to make findings of fundamental dishonesty against the four claimants who alleged sexual abuse against him.

In relation to the first claimant, given the court had found that she had engaged in sexual activity with the defendant, the court considered such a finding would be inappropriate.

In relation to the remaining three claimants, the court had found that they had not been sexually assaulted as children, nor were they raped or sexually assaulted in adulthood. On this basis, a finding of fundamental dishonesty was possible. However, despite the court’s findings concerning the claimants’ dishonesty in the conduct of the claims and its express reference to dishonesty, the court declined to make a finding of fundamental dishonesty in the case of any of the claimants. The court’s explanation for this was as follows:

“It is sufficient for the purposes of their claims that I have found that their evidence was not sufficiently credible for me to conclude that they have proved their claims to the required evidential standard. While, of course, that carries with it the conclusion that they were not raped or assaulted by the defendant, that is because that is a binary issue within this litigation, and one which is decided on the balance of probability. But I do not consider it appropriate to follow that through to the conclusion that they have lied and been dishonest in relation to the allegations they have made. Accordingly, I decline to make a finding of fundamental dishonesty.”

Comment

Given the court’s findings concerning the credibility of each of the claimants, which included exaggerated Schedules of Loss, suppressing and concealing evidence, giving dishonest evidence and attempting to mislead the court at trial, it is reasonable to assume that if there were ever cases in which a court would be inclined to make findings of fundamental dishonesty in abuse claims it would be these. However, it appears the court has chosen to focus solely on the extent to which the claimants were fundamentally dishonest in their accounts of alleged sexual abuse. This would appear to ignore the wider issues related to the primary claim, not just the binary issue of the happening of the abuse.

Notwithstanding that the court’s findings indicate that the claimants’ conduct was likely to be considered dishonest by the standards of ordinary decent people (as per the guidance in Shaw v Gillian Wilde [2024] EWHC 1660 (KB)), it appears that in the context of abuse claims, unless there is clear evidence of dishonesty concerning the occurrence of abuse itself, it is extremely unlikely a court will make any findings of fundamental dishonesty, even where the claimant’s claim has been significantly exaggerated and/or their evidence has been found to been untruthful in other aspects of their claim.