Two High Court decisions this month serve as timely reminders about the risks and responsibilities associated with pleading fundamental dishonesty and relying on surveillance evidence in clinical negligence and personal injury claims. New Healthcare & Sport Partner and North West Lead, Louise Jackson, and Healthcare Associate, Katie Everson, examine the cases and key takeaways.
Courts adopt a robust approach to allegations of fundamental dishonesty, and the seriousness of such a finding means that the evidential threshold is high. Mere exaggeration is insufficient unless it materially alters the nature or value of the claim. It is important to always be aware that speculative or weak allegations carry reputational and cost risks.
Hakmi v East & North Hertfordshire NHS Trust & Norfolk & Norwich University Hospitals NHS Trust [2025] EWHC 2597 (KB)
In this clinical negligence case, Dr Hakmi, an orthopaedic surgeon, claimed over £1 million following a second stroke in 2016, alleging misdiagnosis and failure to administer thrombolysis treatment. The defendant NHS trust accused him of deliberately underperforming on neuropsychological tests to exaggerate cognitive impairment.
The court ultimately dismissed the main claim on causation grounds accepting the defendant’s submissions and evidence but rejected the FD allegation. The judge found no evidence of deliberate underperformance and concluded that the dishonesty claim, which alleged that the claimant had exaggerated his physical or cognitive limitations, was unsubstantiated. The court accepted the claimant’s expert opinion that the neuropsychological tests were unsuitable for stroke patients, that the claimant did not present as someone who was trying to mislead the court, and referenced the factual evidence disclosed by the claimant from colleagues who attested to his integrity.
As a result, the defendant was penalised with a 15% costs order payable to the claimant from the point FD was raised (the claimant sought 25%). The judge considered the unfavorable national press coverage on the first day of trial and the disastrous consequences for the claimant on his reputation and career had the allegation been found proved.
Surveillance evidence intended for trial must be disclosed in full, in a timely manner and in accordance with CPR Part 31. Withholding such evidence to preserve its impact is a risky strategy that may result in exclusion. The court has the power to control and exclude evidence such as surveillance pursuant to CPR 32.1. Best practice encourages early disclosure to ensure fairness and to enable proper cross-examination, and to make sure footage is authentic, contextualised, and lawfully obtained.
Perrin v Walsh [2025] EWHC 2536 (KB)
In this personal injury case, the claimant, a former police officer, suffered serious injuries in a motorbike accident. Although liability was admitted, the defendant later questioned the extent of her ongoing symptoms and commissioned covert surveillance between 2022 and 2024.
Edited footage was served in February 2025, but unedited footage was delayed and incomplete until April. Surveillance operatives falsely claimed no footage had been excluded, which was later disproved.
The defendant made an application seeking to rely on the surveillance evidence and to amend the defence to plead fundamental dishonesty. The claimant opposed the application on the basis that the surveillance was unreliable. Judge Grimshaw criticised the conduct of the surveillance company citing misleading witness statements and breaches of integrity but, despite this, the judge declined to exclude the surveillance from evidence. The footage was deemed to be of probative value as to the level of the claimant’s functioning and extent of the alleged disabilities (for example the claimant alleged that she was unable to drive due to the injury but was seen driving on the footage) and the judge had to balance this value against any potential prejudice to the claimant. While there were significant flaws in the editing of the surveillance evidence, compounded by the witness statements which contained untrue information, the judge did not consider that the failings had prejudiced the claimant. The claimant was unable to persuade the court that the undisclosed/unedited footage was beneficial to her, and at most it was found to be neutral.
The judge however issued a strong warning to defendants, insurers and surveillance firms about maintaining high standards, integrity and propriety. It was also a close call as to whether the conduct of the surveillance operatives was such to exclude the evidence under CPR 32.1.
The judgment also reminds parties that adverse costs orders can be made to reflect poor conduct. In this case, despite the defendant being successful in their application to rely on the surveillance, the judge made an order that the defendant should pay 80% of the claimant’s costs of the defendant’s application, assessed at £40,000.
If you have any questions or would like advice on fundamental dishonesty matters in clinical negligence, please contact North West Healthcare & Sport lead, Louise Jackson, who has experience in successfully establishing FD at trial and recovering significant costs.
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