Kirsty Williams-Henry v Associated British Ports Holdings Ltd [2024] EWHC 806 (KB)

The main issue addressed at the trial of this case was whether the Claimant had been fundamentally dishonest within section 57 of the Criminal Justice and Courts Act 2015. Mr Justice Ritchie found that the Claimant had been fundamentally dishonest. The issue that he then had to decide was whether if he dismissed the claim under section 57 (2) that would cause a substantial injustice to the Claimant: section 57(2) says that “the Court must dismiss the primary claim, unless it is satisfied that the Claimant would suffer substantial injustice if the claim were dismissed”.

The law on fundamental dishonesty is now reasonably well-settled. One area where there has been little guidance from the courts, however, is on the meaning of “substantial injustice” within section 57(2). In Woodger v Hallas [2022] EWHC 1561 (QB) Mr Justice Knowles had said that when considering substantial injustice judges would generally know it when they saw it. In Williams-Henry Mr Justice Ritchie set out the approach he thought should be adopted by the court when deciding whether a claimant would suffer substantial injustice if their claim was dismissed.

In Williams-Henry the Claimant fell off the edge of Aberavon Pier suffering a moderately severe brain injury. Liability for the accident had been agreed at two thirds in the Claimant’s favour. 

The Claimant after taking account of the agreement on liability contended for damages totalling £2,352,261. The Defendant valued the claim at between £259,174 and £367.957. Mr Justice Ritchie awarded the Claimant £596,704 for the genuine injuries he found that she had suffered.

Firstly, Mr Justice Ritchie pointed out that section 57(2) gave the judge a discretion which was to be exercised fairly and only if a threshold with two parts was reached. Part one was a finding of injustice to the Claimant. Part two was a finding that the injustice was substantial.

He said that the correct approach when deciding whether a substantial injustice arose was to balance all of the facts, factors and circumstances of the case to reach a conclusion about substantial injustice. He said that the relevant factors were all of the circumstances but included the following:

1. The amount claimed compared to the amount awarded. If the dishonest damages claimed were small or moderate compared to the size of the assessed genuine damages which were substantial or very substantial then this made it more likely that there would be substantial injustice if the claim was dismissed.
2. The scope and depth of the dishonesty found to have been used by the claimant. If there had been widespread and gross dishonesty then that made a finding of substantial injustice less likely.
3. The effect of the dishonesty on the construction of the claim by the claimant and the defence of the claim by the defendant. This would be measured by considering all matters including the costs consequences of the work done in relation to the dishonesty compared with the work done had there been no dishonesty.
4. The scope and level of the claimant's assessed genuine disability caused by the defendant. If the claimant was very seriously brain injured or spinally injured, then depriving the claimant of damages would transfer the cost of care to the NHS, social services and the taxpayer generally. The insurer of the defendant had taken a premium for the cover provided. Why should the taxpayer carry the cost? That would be more unjust than if the claimant had, for instance, suffered a mild or moderate whiplash injury. 
5. The nature and culpability of the defendant's tort. Brutal long term sexual abuse, intentional assault or drug fuelled, dangerous driving were more culpable than mere momentary inadvertence.
6. The Court should consider what the Court would do in relation to costs if the claim was not dismissed. The judge should ask: will the Court award most of the trial and/or pre-trial costs to the defendant in any event because fundamental dishonesty had been proven? Also, would the claimant have to pay some or all of their own lawyers' costs out of damages if the claim was not dismissed? These both aimed towards answering the question: "what damages will be left for the claimant after costs awards, costs liabilities and adverse costs insurance premiums are satisfied?" If the genuine damages to be received by the claimant would be substantially reduced or eradicated by the adverse costs awards, then it was less likely that substantial injustice would be caused by the dismissal.
7. Had the defendant made interim payments? How large were these and would the claimant be able to afford to pay them back?
8. Finally, what effect would the dismissal of the claim have on the claimant's life. Would they lose their house? Would they have to live on benefits, being unable to work?

Having considered all the circumstances of the case Mr Justice Ritchie found that there would not be a substantial injustice to the Claimant if he dismissed her claim.

Case note provided by Adrian Higgins. 

9th May 2024

Adrian Higgins

Call 1990