Matthew Shaw v Gillian Wilde [2024] EWHC 1660 (KB)
Keoghs and Hastings Direct have defeated a £6.6m personal injury claim, believed to be the highest ever value dismissed on the basis of fundamental dishonesty, both in terms of the initial pleading at £6.6m and the court’s assessment of the valid claim at £1.2m.
The case was handled by Keoghs Partner, Mike Pope, and Solicitor, Ryan Hodgkinson, who were instructed by Mathew Buss of Hastings Direct.
On 27 June 2024 HHJ Craig Sephton KC, sitting as a judge of the High Court in the King’s Bench Division of the Manchester District Registry, handed down judgment in the case of Matthew Shaw v Gillian Wilde [2024] EWHC 1660 (KB) and dismissed the claim pursuant to Section 57 of the Criminal Justice and Courts Act 2015.
The full judgment is essential reading for all PI litigators since it deals with several key issues, including:
Mr Shaw was 26 at the time of his motorcycle accident on 30 June 2018, in which he suffered serious injuries to all four limbs. His trauma severity is illustrated by the fact he underwent 23 surgical procedures.
After a split trial in February 2022, where allegations of contributory negligence were dismissed, Mr Shaw stood to recover 100% of his damages. However, by that stage the claim had become far more complex. Mr Shaw was unable to recover his liability costs following that successful trial; fundamental dishonesty had been pleaded and therefore any costs order fell to be decided following the determination of FD at the end of the case.
In the early stages of the case Hastings Direct released interim payments amounting to £150,000. A Claim Form was issued on 31 July 2019. A provisional Schedule of Loss dated 26 May 2020 sought £6,465,578 plus the cost of future aids and equipment. In September 2020 Mr Shaw made an interim payment request by letter, seeking £1.5m. This was to fund continued rehabilitation, single storey accommodation in an affluent area with an average cost of £566,000, and a Land Rover Discovery or Mercedes GLE, which had been recommended in a transport report prepared by Bill Kiely.
The interim request was refused. By the time it was made, Hastings Direct and Keoghs had already obtained surveillance evidence revealing Mr Shaw walking 900 metres without a stick, having previously indicated his mobility was limited to 200 metres with a stick. In contrast to the initial request, his interim application dated 4 November 2020 was limited to £300,000. In support of this application Mr Shaw reiterated his reduced walking tolerance with aids, and his requests for a bungalow along with an expensive car. It was also suggested he required a pavement scooter and a quad bike in order to observe remote sports (BASE jumping, parachuting, climbing, and mountain biking etc., to which he himself had not returned).
The application was listed to be heard in December 2020. Following instructions received from Hastings Direct, Keoghs issued a warning email to Mr Shaw on 4 December 2020 indicating he was not being truthful and asking him to reconsider/withdraw his application. This email was deployed to stop the application in its tracks, and to ensure covert investigations could continue while the FD case was perfected. Repeated reference to this email in the judgment illustrates its tactical importance, with the judge placing considerable reliance on it. Mr Shaw failed to heed the warning in the email and proceeded with the application. As such, the defendant’s hand was forced. Keoghs was instructed by Hastings Direct to disclose all the surveillance/intel held, otherwise there was a risk of a significant interim award. Surveillance operatives had observed Mr Shaw for 16 days and captured footage on eight of those days.
Covert footage revealed Mr Shaw walking without aids, shopping using a mountain bike, driving an SUV, and mountain biking at a remote location which is well known for sport climbing. It was conspicuous to note Mr Shaw was only seen using a stick on one occasion in the footage - when visiting hospital for an outpatient appointment. Mr Shaw agreed to adjourn the interim application in light of this disclosure. At a hearing in February 2021 before Turner J the interim application was dismissed, in recognition of the fact that a finding of FD would see Mr Shaw recover no damages at all (on 22 July 2021 Warby LJ in the Court of Appeal refused the claimant leave to appeal this decision). The defendant received permission to plead FD.
Mr Shaw’s pleaded Reply to the FD defence was expansive. It suggested he had miscalculated walking distances and was mistaken rather than dishonest. In oral evidence Mr Shaw stated he had simply followed Maggie Sargent’s advice (his care expert) when presenting his care claim, with £2.35m sought for future care alone. At the relevant time - May 2020 when his schedule was drafted - he had not even met Ms Sargent. Mr Shaw also asserted he required a quad bike in order to observe remote sporting activities. By the time of the Reply, Keoghs already held documentation confirming Mr Shaw had ascended Mount Snowdon using an electric bike in October 2020. When this was put to Mr Shaw he alleged managing only two thirds of the summit, but this was expressly rejected by the judge. During evidence Mr Shaw described Mount Snowdon as a ‘hill’ and attempted to justify his need for a quad bike for peaks such as Mont Blanc or Monte Rosa. The judge pointed out it would not be possible to ascend Mont Blanc on a quad bike. Mr Shaw suggested video footage of him walking 900m to and from his local shop, and cycling to another shop on his mountain bike, both represented the only occasions on which he had made these journeys. These explanations were rejected, after witnesses conceded during cross examination they had visited the shops with Mr Shaw on several occasions, when he used no walking aids.
An important practice point arose prior to trial, in connection with the Mount Snowdon issue. Mr Shaw asserted, in a witness statement dated November 2023, that he told his solicitor in December 2020 about cycling up Mount Snowden on an e-bike in October 2020. There was an attempt to blame the legal team for failing to include reference to Mount Snowdon in the claimant’s Reply and his witness statements, which were both prepared specifically in response to the pleading of FD. In asserting this, Mr Shaw waived privilege regarding the basis of the instructions he had given to his legal team. As such Keoghs requested, and Mr Shaw was obliged to disclose, all file notes, letters and emails connected with the drafting of these documents. Detailed review of those documents revealed no such information had been given by Mr Shaw to his solicitor, as he had alleged.
Following the pleading of FD Mr Shaw served ‘day in the life’ videos. These videos backfired, since he presented as considerably more disabled than when seen in the surveillance footage; thus the evidence carried no weight.
Hastings Direct authorised the continuation of covert enquiries, even after FD had been deployed. The results of these enquiries were not formally pleaded since the developments evolved over many months and required deep web searches, meaning any formal update pre-trial would have compromised the continued gains being made. This created a situation of FD ‘mission creep’, where a much broader attack was made upon dishonesty, as compared with what had been pleaded against Mr Shaw (which was essentially based on surveillance footage). This did not trouble the court, and the point had to be conceded by Mr Shaw’s legal team. The information was within his own knowledge, and he had clearly been put on notice his credibility was under attack generally.
The ongoing covert enquiries suggested:
The judge found that, by autumn 2019, Mr Shaw had largely abandoned walking aids. The presentation of his claim in 2020 by way of the £6.6m Schedule of Loss, the interim payment requests, and the documents supporting the interim application, were found to be misleading and untrue. The judge expressly rejected the suggestion any discrepancies were explained by fluctuating symptoms. The contents of Mr Shaw’s formal Reply to the pleading of FD, with his explanations and excuses, were all rejected. Similarly, the court was not impressed by arguments suggesting the blame lay with Mr Shaw’s legal and Part 35 teams; he had signed the statements of truth, and the responsibility was his. The court was exhorted to take into account Mr Shaw’s dyslexia and childhood ADHD as factors potentially relevant to the making of mistakes, inconsistencies, and the signing of Statements of Truth. This was rejected since he gave evidence for over two days, during which time he was able to follow all questions, read text in the various bundles, and provide coherent answers to questions.
The presentation of Mr Shaw’s case was not assisted by the fact his Schedules of Loss had varied considerably over time, in terms of their total values. The amounts pursued appeared in the following Schedules of Loss: (i) £6.6m 26/05/20 (ii) £1.6m 08/12/20 (iii) £3.6m 19/10/21 and (iv) £3.9m 08/01/24. On a Sunday afternoon, before the trial scheduled to commence the following Monday morning, Mr Shaw served his final Schedule of Loss with a total of £2.5m. The contrast with the initial Schedule of Loss at £6.6m was stark.
Another unique feature was the fact the care experts (Maggie Sargent and Fiona Johnson) were very close to agreement at the commencement of the trial. As the evidence unfolded during the trial they prepared a further joint statement, confirming no areas of disagreement. Bearing in mind how often care reports are polarised in litigation of this nature, it was a surprising development, and one not lost on the judge.
The well-established principles of fundamental dishonesty were confirmed, and the previous authorities followed. These included:
The judge concluded this was not a case of exaggeration but rather conduct dishonest by the standards of ordinary decent people. The judge concluded Mr Shaw had lied about his mobility and function. These were central issues to quantum. They were not incidental or collateral. The effect of the lies on the pleaded claim was ‘striking’. The May 2020 Schedule of Loss carried a total of £6.6m, but the judge’s valuation was £1.2m (see below). Without dishonesty, it is likely the case would have settled after joint statements, at the latest. Due to dishonesty ‘the court has had to unpick Mr Shaw’s lies in order to arrive at the true facts. The parties have incurred the costs of a ten-day trial… The court’s valuable resources have been expended. The lies have had a very significant effect upon the costs of the case and the use of court resources’.
Having satisfied itself Mr Shaw had been fundamentally dishonest, the court then proceeded to assess the genuine value of the claim had it not been presented dishonestly, pursuant to s.57 (4) of the 2015 Act. In doing so, the value was recorded as being £1,212,389.94 plus interest. The valuation only allowed £171k for future care. There was no allowance for accommodation, the judge noting Mr Shaw had used a slack line and therefore could not be regarded as unsafe on stairs.
The court expressed doubts about the objectivity of several witnesses and experts called by Mr Shaw, due to their tendency to advocate for him, rather than strictly sticking to issues of fact and expert opinion. Other witnesses appeared to have been ‘tipped off’ in how to deal with certain lines of questioning, despite the court managing the trial so that lay witnesses could not hear each other give evidence. A sterile witness environment is critical when defending an FD claim of this nature. Little weight was given to the evidence of those witnesses who had been ‘tipped off’.
Some of the Part 35 evidence was agreed by the experts, but where there was a conflict the defendant’s Part 35 evidence was preferred. Anthony Clayson was regarded as ‘more fair-minded and objective’ than Prof Harris. The court was not persuaded by the oral evidence of Alexa Dawson, Mr Shaw’s Part 35 physiotherapist, even though the defendant’s expert was very sadly deceased by the time of trial.
Comments regarding the case manager include “defensive and appeared very reluctant to accept obvious conclusions”, “I was helped neither by her opinion nor by her advocacy of her client”, “frequently argumentative”, and “I had to…remind her…to give evidence and not to put the best gloss on her evidence…”. The case manager was put under significant pressure to explain why care invoices submitted included times when Mr Shaw was abroad and not in receipt of care from his mother, and why views expressed by Mr Shaw’s driving instructor that he did not require any vehicle adaptations were not passed to Bill Kiely for his transport report, in the context of a £500k claim for transport costs. She was unable to do so. The claim for case management fees of £17,513.99 was reduced to £10,000 within the court’s valuation. This reduction of 42.9% dwarfs the 20% reduction which was found in Loughlin v Singh [2013].
Although a lengthy judgment, it cannot convey the scale of enquiries undertaken over 4.5 years by the joint efforts of Hastings Direct and Keoghs, which were required to defeat this claim.
Surveillance in September 2019 showing Mr Shaw walking 900 metres to and from his local shops without a stick was only the thin end of a significant dishonesty wedge. Uncovering the full extent of the dishonesty required extensive surveillance, intel and deep web searches, specific disclosure, and countless hours of cross referencing all materials to look for discrepancies. Bank statements were found to be invaluable for cross referencing purposes. Success at trial was the result of extensive collaboration between Hastings Direct, Keoghs, and both counsel.
This claim was capable of settlement at a modest level well before the 10-day trial. A decision was taken to contest the case before the judge since the dishonesty was multi-faceted, Mr Shaw persisted in it, and he was unrepentant. As such, this is an example of the stance taken by Hastings Direct to investigating and defending dishonest claims. As an insurer Hastings Direct are committed to paying out on genuine injury claims quickly and fairly, but their response to dishonest claims is forensic and robust.
The other facets of the decision are covered in separate articles, including the issue of substantial injustice, and costs orders flowing from fundamental dishonesty and split trials.
Keoghs LLP instructed Christopher Kennedy KC and Matthew Snarr, both of 9 St. John Street Chambers, Manchester, to represent Hastings Direct.
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