“No judge would consider it proper to reach a conclusion about a witness's credibility based solely on the way that he or she gives evidence, at least in any normal circumstances. The ordinary process of reasoning will draw the judge to consider a number of other matters, such as the consistency of the account with known facts, with previous accounts given by the witness, with other evidence, and with the overall probabilities. However, in a case where the facts are not likely to be primarily found in contemporaneous documents the assessment of credibility can quite properly include the impression made upon the court by the witness, with due allowance being made for the pressures that may arise from the process of giving evidence….”
“19. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty…to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.”
“In or around December 2018 Racheal left Brian and came to stay with me at my old house at 60 Marchment Close, Salisburry, SP2 0BS. She told me that she and Brian were separating. I sympathised with her, she is a close friend and I was going through my own separation at the time. I was happy to let her stay and sort her head out. She ended up staying with me until August 2019. Throughout that time she spent most nights at my home, but she might have spent one or two nights a week at Fairfax Close, where Brian and the kids live.”
“Brian told the guy that he was fed up of the army and was ready to leave but he didn’t want to leave the army empty-handed. He said that he wanted to make a claim for NFCI so he could get some money but he was worried to make the claim as he thought he might fail the test at Gosport. The former soldier told him that he needn’t worry as he could tell him what you need to do to pass the NFCI test.”
“The former soldier told Brian that he shouldn’t play stupid when he went to the medical centre. He needed to tell them that he couldn’t walk for more than hundred metres and that he needed to use a walking stick, as this would give him a higher payment. He also told him about some of the disability payments that he was getting such as a carer’s allowance and that he should say that Racheal took care of him and that she would receive a payment also. The former soldier also told Brian when he is given an appointment to see a specialist that you need to say that he couldn’t travel and struggled to walk so that they needed to come and visit him. Then when they arrived Brian needed to be downstairs and should leave his duvet and pillow lying around and make sure the house wasn’t clean but left in a dirty state. It should also have a bowl of food on the floor and to use a water bottle to urinate into. He should then leave these things lying around the house and say that he couldn’t take them out or get rid of them as he had to wait for Racheal to do it.”
“It didn’t make any sense to me. It also took me back to the wedding when I saw Brian in June 2019. The article said that Brian “could only walk around 100m with a walking stick” and “could only stand for 10 minutes” but this wasn’t the Brian that I saw. At the wedding I saw that Brian was walking normally, didn’t use a walking stick or have a limp. I also saw him standing for long periods of time by the bar drinking and then dancing around. There was nothing in the way that he acted that made me think that he had any physical problems or that he was physically disabled in any way.”
“After the meal and the speeches had finished, there was a DJ playing music plus other Malawian artists and people dancing. I recall seeing Brian dancing and having fun. It looked like he was having a really good time and at no point can I remember thinking this was a person who was in a lot of pain or was struggling. There was nothing to make me think that.”
“§5.02 Mr Muyepa required assistance from his wife and myself from the point of arrival in their car. Mr Muyepa’s wife assisted Mr Muyepa from the car, and then in walking into the building. Mr Muyepa also used a walking aid. Mr Muyepa’s gait was slow and considered. He had difficulty ascending just a few steps and had to stop regularly (every minute) to rest. Mr Muyepa chose to sit on a wooden (dining) chair rather than in a soft leather one, because he felt it easier to lower and rise from it. Throughout the consultation, which lasted for 2 hours, Mr Muyepa expressed pain, both orally and through his facial expressions, and would touch or rub his legs. During the consultation, the room temperature of around 20C, and the outside temperature was between 18-22C.”
“We agree that the Claimant now has symptoms consistent with cold sensitisation, which, if reflective of underlying small fibre neuropathy, would be the result of his NFCI. However, we both agree that there is a significant psychological element in the Claimant’s presentation, and this causes us both to question the security of the diagnosis. This is because although many elements of the Claimant’s past symptoms were consistent with NFCI , he currently complains of other symptoms that are less typical and inconsistent, and there were findings on examination, especially those signs identified by Dr Mumford during his examination in March 2020, relating to the Claimant’s balance, gait and perception of vibration which raised the possibility of non-organic issues. In other words we agree that in this case there is a realistic possibility of exaggeration of symptoms and questions of credibility arise.” 226. and “Dr Carey was of the opinion that the Claimant’s NFCI is severe because he does not apportion as much emphasis to the psychological component of his condition. In contrast, Dr Mumford is of the opinion that the Claimant’s NFCI is mild, with the majority of his current symptoms taking origin on a psychological rather than a physical basis, moreover Dr Mumford is concerned that there may be ongoing exaggeration or embellishment of the symptoms in this case, but accepts that determination of veracity is an issue for the court.”
“Dr Mumford recognised that the 2016 video was taken some four years before he assessed the Claimant, but noted considerable surprise that an individual who carried a diagnosis of small fibre peripheral neuropathy (i.e. NFCI) in 2016, yet was fully mobile, could seemingly have accumulated such apparent severe disability over just four years i.e. in the period between the 2016 video and his assessment in 2020. This in his view would be an exceptionally unusual timeframe the progression of symptoms due to a peripheral neuropathy, which in general progresses only slowly, over many years.” (b) The Claimant has unusual or “bizarre” symptoms. Dr Carey could give no adequate explanation for the limp or for the use of the stick by the Claimant other than it was used for reassurance (which is not what the Claimant said he used it for). Dr Mumford described the pain in the legs and back as bizarre symptoms and he could not explain them (nor the “curious” falling problem). He did not understand why the Claimant needed a stick. On21st May 2018 the Claimant told Dr Carey that his symptoms were no better in summer and that the pain in his hands and feet was generally constant, although some days were better/worse than others. This was contrary to what would be expected of symptoms. Dr Carey also recorded that the account given by the Claimant about his symptoms was that they were “haphazard during the day” with no particular pattern. His wife informed Dr Carey that his feet felt cold when it was warm and warm when it was cold. There is no organic explanation for such haphazard symptoms. Dr Mumford stated that he would not expect to see fluctuations on a daily basis in the absence of an (environmental) temperature change. Dr Mumford stated swelling can accompany NFCI but is uncommon and very variable. However the underlying condition should improve with time and he could not explain the swelling witnessed by some of the Claimant’s witnesses and he considered it “very odd”. (c) There were inappropriate signs on examination. There were four aspects which caused Dr Mumford concern. (i) “His gait seemed odd. It was not completely normal. He walked with a stick in his left hand which he appeared not to need. (ii) “He was able to walk using little steps, each time touching the heel of the moving foot with a toe of the other foot; a test called “Tandem walking” the fact that he could do this suggested normal, or very near normal, balance, coordination and proprioception” (iii) After standing still apparently putting little pressure on the stick (which appeared unnecessary) Dr Mumford asked the Claimant to continue standing with his eyes open but to do so without using the stick. As soon as he lifted the stick just an inch or so he fell backwards. In his first report Dr Mumford stated “the fall was somewhat dramatic and did not look to me like a natural fall” as he subsequently clarified reality was that he thought the fall was feigned. He simply appeared to throw himself backwards somewhat conveniently landing in the relatively narrow gap between the wall and a table. Dr Mumford said he thought “Crikey, what was that?”
“at interview with both experts the Claimant described neurological impairments giving rise to physical disability, and a resulting handicap in terms of his ability to function on a day-to-day basis. Such impairments were not seen in the video recordings, which appeared to show the Claimant without any noticeable neurological impairments, and who appeared to walk (albeit with a stick, although the extent to which this was relied upon is uncertain) and able to drive. We agreed that these inconsistencies cannot be explained purely on the basis of neurology or NFCI, and neither of us can find readily available explanation for the marked divergence between the clinical picture exhibited at the medical interview and what is seen in the video recordings.” and “Both experts note that significant changes in disabled individuals’ physical capacity over a short period of time are not seen in their respective medical practices. Accordingly, both experts agree one needs to be cautious regarding a “good day”, “bad day” explanation, especially for chronic long-term conditions.”
“Dr Mumford was of the opinion that the video evidence showed the Claimant walking normally at a wedding in 2019, with no signs of any neurological deficit. Dr Mumford was also of the opinion that such a gait was inconsistent with the presentation of the Claimant when he saw him just nine months later in March 2020. Dr Carey agreed with Dr Mumford that the Claimant’s gait appeared normal, and that it was in stark contrast to the presentation of the Claimant when he saw him nearly 2 years earlier in October 2018, and one year later in August 2020.”
“The video recordings are astonishing. They show Mr Muyapa moving around normally, without any evidence of gait difficulty not of poor balance……He clearly does not need to use a stick for walking assistance, despite his report (and illustration) of such a requirement at interview…..It now seems very likely that he was exaggerating and or substantially embellishing his problems when he and I met.”
“12. Reliability a. Surveillance or social media evidence can reveal discrepancies between a claimant’s account of his activities to experts with the objective reality. b. I could see nothing in the DVD or social media footage which suggested any such discrepancy. c. This is consistent with my impression at interview where I found no suggestion of exaggeration or abnormal illness behaviour. d. This is also consistent with the contemporaneous medical records in which I could find no suggestion that the treating clinicians detected signs of exaggeration or malingering.”
“The evidence covers a considerable period and comes from a wide range of informants. It also gives a consistent impression of a man who has become socially withdrawn and depressed and whose personality and character has markedly changed since his injury.”
“Mr Muyepa has bilateral injuries. He uses a stick not a crutch. A stick cannot be used to transfer any meaningful weight through the upper limb (unlike an elbow crutch) and in this context would be used as additional support or ‘psychological support’ in the context of an account of having sustained falls. Use need not, from a chronic pain perspective, involve observable transfer of weight through the stick in this context.”
“On2 March 2017 , it is reported that ‘since he was last seen in July 2016, he has been doing his job and feels he has improved’. However, by27 April 2017 he is noted to have a recent deterioration in his symptoms, and is walking with antalgic gait and a stick.”
“I note that the Claimant seeks to explain the discrepancies between the surveillance and what he has told experts in terms of him having good days and bad days. I accept that in individual's with NCFI [sic] symptoms there will be fluctuations and symptoms will be worse in cold weather. However, I am unconvinced by that argument.”
“The new evidence only strengthens my previously held opinions in this case.”
“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”
“The Claimant is entitled to damages to meet his reasonable needs arising from his injuries. In considering what is 'reasonable', I have had regard to all the relevant circumstances, including the requirement for proportionality as between the cost to the Defendant of any individual item and the extent of the benefit which would be derived by the Claimant from that item.”
“In my view, a lawnmower is now an everyday item of expenditure for anyone with a garden.” 317. And “The microwave: Mrs P said that she only purchased one because S P's dinners need constantly to be left warm. Nevertheless, this is nowadays a normal piece of household equipment, and I disallow the cost of it. A dishwasher: For the same reasons as with the microwave, I disallow this item. TV and video: For the same reasons as above, I disallow this item.”
“Mr Smith said that this was bought on the advice of the speech therapist to aid communication with the Claimant. Although he said that he preferred film camera to a digital camera and would apart from the Claimant's disability not have purchased a digital camera, he acknowledged that most parents enjoyed taking photographs of their children and many nowadays had digital cameras. In my judgement it is likely that the family would in any event have purchased a digital camera, and accordingly I do not allow this aspect of the claim.”
“..if, on the balance of probabilities, a plaintiff is going to use private medicine in the future as a matter of choice, the defendant cannot contend that the claim should be disallowed because National Health Service facilities are available. On the other hand, if, on the balance of probabilities, private facilities are not going to be used, for whatever reason, the plaintiff is not entitled to claim for an expense which he is not going to incur.”
“This evidence does not lead me to need to alter my opinion within my report or subsequent joint statement.”
“At 3 am he wakes up. Mrs Muyepa will sort the children out, take them to school, come back and attend to his breakfast routine. In the holidays, he will get up at 5am and is assisted downstairs to watch TV. His breakfast is provided. If Mrs Muyepa is going out she will administer his medication then put the fluids and snacks near him. When there is time, he has a shower with assistance from Mrs Muyepa on waking. Mrs Muyepa prepares breakfast. Dependent on his pain levels and impact on his mobility, he either uses a urine bottle or go to the toilet, with assistance to urinate. Use a stick with assistance from his wife to mobilise. In the middle of the day, he sits in the chair for most the time and his wife will encourage him to mobilise. Mrs Muyepa were very occasionally work a shift for 2 to 3 hours within the school day, and will leave his lunch, medication and fluids reachable from his chair. After Mrs Muyepa has picked up the children from school, they have tea together, which has been prepared by Mrs Muyepa. He is assisted to have a shower before is assisted to go to bed.”
“Jill Ferrie highlighted in her supplemental report that the detail in the witness statements…describe a different scenario to that advice to both care experts and to (sic) which assessments were based. Importantly Jill Ferrie highlighted that Mrs Muyepa advised she had not moved to the current property with Mr Muyepa in December 2018 and therefore she does not feel that the past assessments of care can be accurate. She also considers that with the above, the ongoing and future care assessments would need to be reassessed.”
“I note that Mr Muyepa was wearing thick soled training shoes and sports socks, compared with the others in the clip who were wearing sandals or flip-flops without socks. It could be inferred from this that Mr Muyepa’s need to keep his feet warm and cushioned was far greater than others in the clip.”
“In my experience unless the discrepancy is blatant or obvious…care must be taken in inferring an individual’s functional ability for work from video footage. In my experience in order to provide reliable opinions employment experts must therefore look for repeated instances of performing the same functional activity over a protracted period of time or prolonged performance of the functional activity over a limited number of occasions”
“In Mr Cragg’s experience and opinion the analysis of these factors does not suggest the chances of Mr Muyepa completing 22 years were less than that indicated by the general statistics and are likely to have been greater than indicated by the general data.”
“NFCI to feet and hands or other body part Email from BC 10 Bty RA (Maj Harvey) If Gnr Muyepa is diagnosed with a NFCI and the decision by ROHT is to down grade him I would like them to know that l am very keen to retain this soldier. He is likely to score well on the upcoming Gnr-LBdr grading board in September and has completed a PNCO leadership course (where he sustained his injury). I would hope to be able to deploy him to Ascension for immersion training - an environment which is warm. When we move into ES2 with WATCHKEEPER my aim would be to employ him as L&R operator. I can employ him now within the Bty with his current limitations. These courses won't take place until next May/June time, Gnr Muyepa has a great attitude to improvement and recovering from his injury and I want to support his efforts Fit for Full Duties within current MES.”
“Since Summers, judges have showed a willingness to strike out claims including personal injury claims before trial or award nominal damages where those claims were pursued fraudulently: Scullion v Bank of Scotland (HHJ Cotter QC, Exeter County Court,24 May 2013 ), where a claim for personal injury was struck out on the basis of sustained dishonesty during the litigation I stated “(this was) a claim which was realistically seeking about£75,000 with a true value of the claim which was, it was overwhelmingly likely, nowhere near a tenth of that” and “..the Claimant asked me to tease out, to pick out the elements of honesty from the dishonesty lest she lose some value element. Well, dishonesty of this scale will often result in personal loss when the person is caught.” ; Homes for Haringey v Fari[2013] EWHC 757 which records at [17] the striking out of an exaggerated claim for personal injury; Joseph v Spiller[2012] EWHC 2958 where Tugendhat J refused to award more than nominal damages in a defamation case because of the fraudulent presentation of special damages despite the fact that some were genuine.”
“95. The need for such a rule, severe as it is, has in no sense diminished over the years. On the contrary, Parliament has only recently legislated to apply a version of it to the allied social problem of fraudulent third party personal injuries claims.Section 57 of the Criminal Justice and Courts Act 2015 provides that in a case where such a claim has been exaggerated by a "fundamentally dishonest" Claimant, the court is to dismiss the claim altogether, including any unexaggerated part, unless satisfied that substantial injustice would thereby be done to him. Parliament has thus gone further than this court was able to do in Summers v Fairclough Homes. 96. Severe as the rule is, these considerations demonstrate that there is no occasion to depart from its very long- established status in relation to fraudulent claims, properly so called. It is plain that it applies as explained by Mance LJ in The Aegeon at paras 15-18. In particular, it must encompass the case of the claimant insured who at the outset of the claim acts honestly, but who maintains the claim after he knows that it is fraudulent in whole or in part. The insured who originally thought he had lost valuable jewellery in a theft, but afterwards finds it in a drawer yet maintains the now fraudulent assertion that it was stolen, is plainly within the rule. Likewise, the rule plainly encompasses fraud going to a potential defence to the claim. Nor can there be any room for the rule being in some way limited by consideration of how dishonest the fraud was, if it was material in the sense explained above; that would leave the rule hopelessly vague.”
“Personal injury claims: cases of fundamental dishonesty (1) This section applies where, in proceedings on a claim for damages in respect of personal injury ("the primary claim") - (a) the court finds that the claimant is entitled to damages in respect of the claim, but (b) on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim. (2) The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed. (3) The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest. (4) The court's order dismissing the claim must record the amount of damages that the court would have awarded to the claimant in respect of the primary claim but for the dismissal of the claim. (5) When assessing costs in the proceedings, a court which dismisses a claim under this section must deduct the amount recorded in accordance with subsection (4) from the amount which it would otherwise order the claimant to pay in respect of costs incurred by the defendant. (6) If a claim is dismissed under this section, subsection (7) applies to - (a) any subsequent criminal proceedings against the claimant in respect of the fundamental dishonesty mentioned in subsection (1)(b), and (b) any subsequent proceedings for contempt of court against the claimant in respect of that dishonesty. (7) If the court in those proceedings finds the claimant guilty of an offence or of contempt of court, it must have regard to the dismissal of the primary claim under this section when sentencing the claimant or otherwise disposing of the proceedings. (8) In this section— "claim" includes a counter-claim and, accordingly, "claimant" includes a counter-claimant and "defendant" includes a defendant to a counter-claim; "personal injury" includes any disease and any other impairment of a person's physical or mental condition; "related claim" means a claim for damages in respect of personal injury which is made— (a) in connection with the same incident or series of incidents in connection with which the primary claim is made, and (b) by a person other than the person who made the primary claim. (9) This section does not apply to proceedings started by the issue of a claim form before the day on which this section comes into force.”
“74. When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual's knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”
“44. It appears to me that this phrase in the rules has to be interpreted purposively and contextually in the light of the context. This is, of course, the determination of whether the claimant is 'deserving', as Jackson LJ put it, of the protection (from the costs liability that would otherwise fall on him) extended, for reasons of social policy, by the [Qualified One-way Costs Shifting] rules. It appears to me that when one looks at the matter in that way, one sees that what the rules are doing is distinguishing between two levels of dishonesty: dishonesty in relation to the claim which is not fundamental so as to expose such a claimant to costs liability, and dishonesty which is fundamental, so as to give rise to costs liability. 45. The corollary term to 'fundamental' would be a word with some such meaning as 'incidental' or 'collateral'. Thus, a claimant should not be exposed to costs liability merely because he is shown to have been dishonest as to some collateral matter or perhaps as to some minor, self- contained head of damage. If, on the other hand, the dishonesty went to the root of either the whole of his claim or a substantial part of his claim, then it appears to me that it would be a fundamentally dishonest claim: a claim which depended as to a substantial or important part of itself upon dishonesty.”
“62. In my judgment, a claimant should be found to be fundamentally dishonest within the meaning of s 57(1)(b) if the defendant proves on a balance of probabilities that the claimant has acted dishonestly in relation to the primary claim and/or a related claim (as defined in s 57(8)), and that he has thus substantially affected the presentation of his case, either in respects of liability or quantum, in a way which potentially adversely affected the defendant in a significant way, judged in the context of the particular facts and circumstances of the litigation. Dishonesty is to be judged according to the test set out by the Supreme Court in Ivey v Genting Casinos Limited (t/a Crockfords Club), supra. 63. By using the formulation 'substantially affects' I am intending to convey the same idea as the expressions 'going to the root' or 'going to the heart' of the claim. By potentially affecting the defendant's liability in a significant way 'in the context of the particular facts and circumstances of the litigation' I mean (for example) that a dishonest claim for special damages of£9000 in a claim worth£10 000 in its entirety should be judged to significantly affect the defendant's interests, notwithstanding that the defendant may be a multi-billion pound insurer to whom£9000 is a trivial sum.”
“65. Given the infinite variety of circumstances which might arise, I prefer not to try and be prescriptive as to what sort of facts might satisfy the test of substantial injustice. However, it seems to me plain that substantial injustice must mean more than the mere fact that the claimant will lose his damages for those heads of claim that are not tainted with dishonesty. That must be so because of s. 57(3). Parliament plainly intended that sub-section to be punitive and to operate as a deterrent. It was enacted so that claimants who are tempted to dishonestly exaggerate their claims know that if they do, and they are discovered, the default position is that they will lose their entire damages. It seems to me that it would effectively neuter the effect of s 57(3) if dishonest claimants were able to retain their 'honest' damages by pleading substantial injustice on the basis of the loss of those damages per se. What will generally be required is some substantial injustice arising as a consequence of the loss of those damages.”