Widlake v BAA Ltd [2009] EWCA Civ 1256

“11. The important issues for determination at the trial were thus, first, whether the effect of the accident on Miss Widlake’s back was simply to aggravate the pain resulting from pre-existing degenerative changes for about 12 months or to advance the inevitable deterioration in the pre-existing low back problem by about 5 years; and, second, the extent of the pain which Miss Widlake actually suffered between the days of her accident and the end of the period which I find is that over which the pain in the back was aggravated or by which the inevitable deterioration in her condition was advanced.”

“She reports no past history of low back pain and this is confirmed by review of the records. There is no other relevant past history.”

“Ms Widlake’s past medical history was covered in my previous report. She tells me she has had no medical problems other than those relating to the accident since my last examination.”

“There was no low back problem prior to the index accident.”

“I therefore believe that Miss Widlake’s injuries from a jarring of the lower back would have largely settled over a period of some twelve months post-injury.”

“Chronic pain is a debilitating condition and, in my opinion, there is evidence of illness behaviour although it is difficult to exclude malingering on the basis of a single consultation, I think she does have genuine symptoms emanating from the sacroiliac joint and any exaggeration is likely to be unintentional … Whilst accepting that there is no scientific basis upon which to base such estimations [as to when she would have suffered a relapse of her previous problems], I think a reasonable estimate would be an acceleration period of around 5 years.”

“52. I was not impressed by Miss Widlake as a witness. I considered her explanations offered in cross-examination on the important issues of why she had not disclosed to Miss Porter and Mr Macfarlane the previous history of her back problems and why she appeared to be acting perfectly normally in the extracts from the film which were put to her to be implausible. The truth of the matter, as I find, is that, while she did injure her back in a fall on 12th July 2004, the consequences were comparatively minor, as indicated by the first account contained in her witness statement dated 4th October 2004, which contain no reference to the sort of pain later described, made no reference to taking any drugs at all, and seemed to limit the consequences of the injury which endured to interference with keep fit exercises, the inability to use her cross-trainer, and not being able to bend at work to carry out body searches. I find that Miss Widlake, who was obviously a person of reasonable intelligence, deliberately concealed the previous history of her back from Miss Porter and then from Mr Macfarlane, in the hope of increasing the amount of compensation which she would recover in respect of her injuries in the accident on 12th July 2004. …”

“13. It is plain, in my judgment, that the real winner of the trial before me was the defendant. The issues were whether Ms. Widlake suffered the back pain of which she complains to the extent to which she complained, and whether, as a result of suffering from such back pain, she had been disabled in the way that she complained and had the consequences of her low back pain brought forward for the period of five years, which I have mentioned. Ms. Widlake’s case, in my judgment, is a rather more serious case than it appears that either of the cases of Molloy or Painting were, because in Ms. Widlake’s case, it is plain, on the evidence, and I have found, that Ms. Widlake set out first of all to mislead her own medical experts. So it was not a case in which she was complaining merely of symptoms which were exaggerated. She deliberately withheld from her own medical experts material information as to her previous medical history. This case, in my judgment, is material because it amounts to an attempt – taking the words of Laws L.J. in Molloy – to manipulate the civil justice system. Not only that, but Ms. Widlake, in my judgment, who plainly knew at all material times what the effects upon her back of falling down the stairs had been, exaggerated them grossly in order to project a case of having suffered symptoms which, even on her latest revised case, were being brought forward by some five years, but which in fact, on my findings, as I have explained in my judgment, amounted to very little and resolved itself almost certainly within a few weeks of the date of the accident. 14. Although the figures in this case have been smaller than the figures which the Court of Appeal had to consider in the case of Molloy, and indeed smaller than the figures which the Court of Appeal had to consider in the case of Painting, the approach, in my judgment, has been to seek, so far as Ms Widlake is concerned, to manipulate the civil justice system on a grand scale, and although it appears that there has not so far been any decision – certainly my attention has not been drawn to any decision – in which the suggestion of Laws L.J. in Molloy has been adopted, in this case it seems to me that it is appropriate to adopt that suggestion and the consequence of setting out, as I find, to abuse the court’s process, in the cynical and dishonest fashion which I have found Ms. Widlake did, should have the consequence, notwithstanding that she has recovered damages in excess of the amount which was paid into court on behalf of the defendant, that contrary to her recovering her costs she should pay the costs of the defendant.”

“The judge was obliged by Part 44.3(5) as I have said, to consider the whole of the party’s conduct. It does appear that he may have considered the respondent’s conduct only after the date of the Part 36 payment. If that is so he fell into error. At least since the particulars of claim filed on 20th September 1999 and until he was found out the respondent’s approach to this action has been nothing short of a cynical and dishonest abuse of the court’s process. For my part I entertain considerable qualms as to whether, faced with the manipulation of the civil justice system on so grand a scale, the court should once it knows the facts, entertain the case at all save to make the dishonest claimant pay the defendant’s costs.”

“17. I am satisfied that there is no such general rule of law [that the dishonest exaggeration of a genuine claim would result in the dismissal of the whole claim]. I am unaware of any reported case in which a judge has dismissed the whole of a claim because he has found that the claim has been dishonestly exaggerated. The invariable rule is that, in those circumstances, the judge awards the limited damages which are appropriate to his findings. Of course, a claimant's credibility may be so damaged that he fails to prove any part of his loss, but if he proves some loss, he recovers that even though he has fraudulently attempted to recover far more. Not only am I unaware of any reported case in which this rule has not been followed, my own long experience of personal injury work at the Bar and on the bench confirms this view. I have, I regret to say, considerable experience of exaggerated claims. Of course, not all exaggerated claims entail dishonesty; sometimes exaggeration can be innocent, resulting from a subconscious preoccupation, even obsession, with the injury. Judges are always careful to take account of such effects when assessing damages. But there are some cases where the exaggeration is plainly dishonest. In nearly 40 years' experience, I have never known a judge refuse to award damages for a genuine injury on the ground that the claimant had dishonestly sought to exaggerate the injury and its effects. 18. The only suggestion that it might be possible to refuse to award any damages at all where the claim has been exaggerated came in the obiter dicta remarks of Laws LJ in Molloy v Shell UK Ltd [2001] EWCA Civ 1271. …”

“Thus, when seen in context, all Laws LJ was saying was that, where a genuine claim was dishonestly exaggerated on a grand scale, maybe the court should dismiss the whole claim. He did not consider whether there was power to do that or whether such a course would be consistent with existing authority or practice. In my respectful view, this was little more than wishful thinking by Laws LJ.”

“The first is the strong likelihood that, but for exaggeration, the claim would have been settled at an early stage and with modest costs. The second is that at no stage did Mrs Painting manifest any willingness to negotiate or put forward a counter-proposal to the Part 36 payment. No-one can compel a claimant to take such steps. However, to contest and lose an issue of exaggeration without ever having made a counter-proposal is a matter of some significance in this kind of litigation but must not be assumed beating a Part 36 payment is conclusive. It is a factor and will often be conclusive but one has to have regard to all the circumstances of the case.”

“What the University chose to do was to make a Part 36 payment which amounted to a rock-bottom figure even on the basis that it established exaggeration to the maximum extent. If it had chosen to do so, it could have pitched the payment higher without for a moment weakening its position on the central issue in the case.”

“15. Persuasively and persistently though these submissions were put, I do not accept them. The claimant was successful in the sense that he established a claim for substantial damages and beat the payment into court, albeit by a small margin. The defendant was perfectly able to protect itself against the fact that it faced an exaggerated claim. As most defendants do in such circumstances, it had access to experienced lawyers and, if necessary, experts to evaluate the strength of the claim it faced. It could with the benefit of such advice – and perhaps with the benefit of hindsight in this case should have – made an earlier Part 36 payment into court, and certainly could have increased that payment into court by making a further payment after the unsuccessful settlement meeting. The judge took into account the fact that the claimant had only just beaten the payment in which had been made, as I have already said. What is more, the judge made it clear that it was open to the defendant to challenge specific items relating to the abandoned claims, such as the costs of the experts which were not relied on at trial, at the detailed assessment, where of course the claimant will only be able to recover costs which were reasonably incurred. ... 16. The reduction which the judge made - and the reduction which we can anticipate the costs judge is likely to make - must act as a considerable disincentive to claimants and their advisers against making exaggerated claims. The case of Painting is, as Miss Griffiths accepted, an exceptional case where the claimant persisted in a claim for £400,000 at trial and was awarded about £25,000 at the end of the process.”

“the issue of exaggeration had been central to the case and the claimant had lost. Here the central issue of dishonest fabrication of symptoms had been resolved in the appellants’ favour. The question of whether they had exaggerated (as opposed to fabricated) their symptoms was secondary. In any event the appellants were acquitted not only of dishonest fabrication but also of conscious exaggeration.”

“73. What amounts to partial success will be a matter of fact and degree and will be case-sensitive. The focus should be on the partial success of the losing party on an issue with costs consequences. The mere fact that the defendant has succeeded in keeping the damages down below the sum claimed by the claimant will not necessarily make him the victor or even a partial victor. Of course, where, as in Painting, the main issue in the case was whether the claimant had grossly exaggerated the claim and that issue had important costs consequences, it will be open to the judge to hold that the defendant was the victor. But if the claimant's exaggeration was no more than to put his case rather high, it does not seem to me that a defendant who has not made an effective and admissible offer can be regarded as the victor. I would accept that exaggeration by a claimant may be taken into account as 'conduct' under CPR 44.3(4)(a). However, for a defendant to regard himself as a winner or even partial winner on an issue of exaggeration, the exaggeration must be an important feature of the claim with costs consequences. … 77. However, even if there were either a finding or an irresistible inference that the claimants had lied or exaggerated their symptoms to the first set of doctors, whether consciously or unconsciously, I do not think that would warrant any abatement of their costs. … 79. Nor does it appear to me that the initial exaggeration of the claims had any real effect on the costs of the action. The early medical reports were abandoned – so the claimants ought not in any event be entitled to recover the costs of obtaining them – but they were replaced by Mr Older's reports and would not have played any part in the hearing had the respondent's counsel not chosen to use them against the claimants on issues of credibility.”

“Although exaggeration of a claim cannot of itself deprive the claimant of his entitlement to costs, it is relevant to consider whether the exaggeration has caused costs to be incurred which would not have been incurred had there been a more realistic evaluation of the claim. “A claimant should be prima facie entitled to his full costs of preparing and presenting his claim. The Board of Assessment’s discretion to reduce the award from the payment of full costs should be exercised judicially. If it holds that the claim was grossly excessive it is necessary for the Board then to enquire whether the exaggeration gave rise to an obvious and substantial escalation in the costs over and above those which it was reasonable for the claimant to incur. If it is satisfied that this was the case, then it is open to the Board to exercise its discretion to deprive the claimant of part of his costs. The amount of departure from full payment of the plaintiff’s costs shall be proportionate, having regard to the waste of time and costs properly attributable to the claimant’s acts or omissions”: Blakes Estates Ltd v Government of Montserrat [2005] UKPC 46, [2006] 1 W.L.R. 297.”