AXA Insurance Plc v David Maher [2026] EWHC 1365 (KB)
[2026] EWHC 1365 (KB)Case No KA-2024-LDS-000024
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
Venue LEEDS DISTRICT REGISTRY
On Appeal from the County Court at Skipton, sitting at Bradford County Court
HHJ Pema
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05 June 2026
Before
MR JUSTICE MANSFIELD
Between
AXA INSURANCE PLCAppellantDAVID MAHERRespondentP N Hinchliffe KC (instructed by Clyde & Co LLP) for AppellantNyssa Crorie (instructed by Express Solicitors) for RespondentHearing Hearing dates: 21 May 2026Approved JudgmentThis judgment was handed down remotely at 1.00pm on Friday 5 June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
Introduction
[1]This is an appeal against the judgment of HHJ Pema dated 11 July 2024, following a trial heard on 12-13 March 2024. The Appellant, AXA, was the Defendant in a claim for damages for personal injury, in respect of its insured driver Mr Grogan. The Respondent, Mr Maher, was the Claimant.[2]The claim concerned a road traffic accident on 11 July 2018. The Judge found for Mr Maher on liability and made an award of damages of £3,609.83 plus costs. That was considerably less than the sum claimed, which, I am told, was in the region of £50,000 to £70,000. The Judge accepted that Mr Maher suffered from several months of left hand, arm, shoulder and neck pain as a result of the accident. He found that later neck and shoulder symptoms, from the end of 2018, were not caused by the accident.[3]AXA appeals, arguing that(i) the Judge was wrong to find as a fact that Mr Maher suffered from any neck and shoulder pain in the period of months immediately following the accident; and(ii) the Judge was wrong not to find that Mr Maher was fundamentally dishonest for the purposes of section 57 Criminal Justice and Courts Act 2015.[4]For the appeal to succeed, AXA needs to succeed on both limbs of the appeal. There is no challenge to the award on quantum, so the whole purpose of the appeal is to achieve a finding of fundamental dishonesty. The alleged error in the findings about neck and shoulder pain is an essential prerequisite in the fundamental dishonesty argument.
The Test on Appeal
[5]An appeal of this kind is a review, not a rehearing. CPR 52.21(3) provides that the appeal court will allow an appeal where the decision of the lower court was wrong. Where it is alleged that the trial judge’s findings of fact were wrong, an appellant faces a high burden – as Mr Hinchliffe KC for AXA recognised. There was no disagreement between the parties as to the principles. The principles were summarised by Lewison LJ in Fage UK Ltd. & anor v Chobani UK Ltd & anor [2014] EWCA Civ 5 at paragraphs 114-115: 114. Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The best known of these cases are: Biogen Inc v Medeva plc [1977] RPC1; Piglowska v Piglowski [1999] 1 WLR 1360; Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23[2007] 1WLR 1325; Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33[2013] 1 WLR 1911 and most recently and comprehensively McGraddie v McGraddie [2013] UKSC 58[2013] 1 WLR 2477. These are all decisions either ofthe House of Lords or of the Supreme Court. The reasons for this approach are many.They include i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed. ii) The trial is not a dress rehearsal. It is the first and last night of the show. iii) Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.[6]In Clin v Walter Lilly & Co Ltd. [2021] EWCA Civ 136, Carr LJ (as she then was) reviewed the authorities, citing Fage with approval. She went on to say: 85. In essence the finding of fact must be plainly wrong if it is to be overturned. A simple distillation of the circumstances in which appellate interference may be justified, so far as material for present purposes, can be set out uncontroversially as follows: i) Where the trial judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence in account, or arrived at a conclusion which the evidence could not on any view support; ii) Where the finding is infected by some identifiable error, such as a material error of law; iii) Where the finding lies outside the bounds within which reasonable disagreement is possible.[7]In Cook v Thomas [2010] EWCA Civ 227 at paragraph 48 Lloyd LJ said: In a case in which the judge has had the benefit of oral evidence from the witnesses, has made findings of fact which are rationally explained, has described in detail his assessment of the respective witnesses as regards their reliability, and where his findings of fact differentiate with care as to what evidence from which witness is accepted in relation to which part of the history, no one witness being accepted as wholly reliable or rejected as wholly unreliable, an appellant who seeks to show that the judge’s findings of fact, or some of them, are unsustainable faces a seriously difficult task. The judge’s findings as to what was said between the Claimant and the Defendants are primary findings of fact, and his findings as to how the Defendants reacted to what was said to them are at least partly findings of fact, even if there may be elements of inference in that process. It has been said many times, Benmax vAustin Motor Co [1955] AC 370, Biogen Inc v Medeva Inc [1997] RPC 1 and Assicurazioni Generali SA v Arab Insurance Group [2003] 1 WLR 577 being only three of the examples of high authority, that an appellate court can hardly ever overturn primary findings of fact by a trial judge who has seen the witnesses give evidence in a case in which credibility was in issue.[8]Mr Hinchliffe KC also relies on authorities which indicate the unreliability of oral evidence and the importance of the documentary record. In Re Mumtaz PropertiesLtd. [2011] EWCA Civ 610, Arden LJ said the following:12. There are many situations in which the court is asked to assess the credibility of witnesses from their oral evidence, that is to say, to weigh up their evidence to see whether it is reliable. Witness choice is an essential part of the function of a trial judge and he or she has to decide whose evidence, and how much evidence, to accept. This task is not to be carried out merely by reference to the impression that a witness made giving evidence in the witness box. It is not solely a matter of body language or the tone of voice or other factors that might generally be called the ‘demeanour’ of a witness. The judge should consider what other independent evidence would be available to support the witness. Such evidence would generally be documentary but it could be other oral evidence, for example, if the issue was whether a defendant was an employee, the judge would naturally consider whether there were any PAYE records or evidence, such as evidence in texts or e-mails, in which the defendant seeks or is given instructions as to how he should carry out work. This may be particularly important in cases where the witness is from a culture or way of life with which the judge may not be familiar. These situations can present particular dangers and difficulties to a judge.13. Care must also be taken by the appellate court. As a general rule, the appellate court would treat the trial judge as having had a special advantage in seeing the witnesses give their evidence. Where the evidence is largely documentary, this advantage is of less worth than where, as in this sort of case, the oral evidence constitutes the primary evidence in the case. In this sort of case, an appellate court is slow to interfere with a trial judge’s finding on a question of fact.[9]Arden LJ then cited a passage from Lord Summer in SS Honestroom vSS Sagaporak [1927] AC 37 at 47 before saying: 14. In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its nonproduction, then the documentation may be conspicuous by its absence and the judge may be able to draw inferences from its absence.[10]The accident occurred on a residential street in Barnoldswick. Mr Maher’s work van was parked on-street, facing so that his driver’s door was on the street side. There were vehicles parked on the other side of the street. There was space for one car to pass between the parked vehicles. Mr Maher was standing in the street next to his van with his door partly open. He was talking to another person. A pickup driven by Mr Grogan drove down the street. Mr Maher was trapped between his own van and the pickup.[11]There was an issue as to exactly how the accident occurred and how Mr Maher came to be trapped. AXA’s case was that Mr Maher opened his van door into the pickup as it passed. The Judge rejected this and found (paragraphs 63-64) that Mr Grogan brought his vehicle into collision with Mr Maher who was standing holding his door without any significant movement. After the collision Mr Maher was trapped between the door and the van by Mr Grogan’s pickup.[12]The Judge found that the accident was caused by Mr Grogan’s breach of duty. There is no appeal against that finding.[13]The Judge then turned to the evidence as to Mr Maher’s injuries. That took the following forms: i) Mr Maher’s own evidence. ii) The contemporaneous documents from the aftermath of the accident and throughout the rest of 2018. That comprised, variously, medical records and statements made by Mr Maher (for example to the police). iii) The expert evidence of consultant orthopaedic surgeons on each side: Mr Mohammed for Mr Maher, who first saw him on 11 July 2019; and Mr Korab-Karpinski for AXA, who produced a report dated 27 July 2023. I note that the appeal bundle contained Mr Mohammed’s three reports and his answers to Part 35 questions. Neither party felt it necessary to put Mr Korab-Karpinski’s report before me, nor the expert joint statement.[14]Before summarising the Judge’s findings, it is helpful to bear in mind the dispute between the parties. i) AXA accepted that Mr Maher sustained some injury in the accident. It accepted that he sustained a soft tissue injury to his left hand and lower arm, for which he sought treatment in the aftermath of the accident. ii) AXA also accepted that from around December 2018 Mr Maher did suffer from neck and left shoulder pain. Around that time, he started physiotherapy treatment which refers to such pain, and thereafter he had extensive medical examinations as to the cause of the pain. Although there was some difference between the experts as to the exact cause of the pain, both agreed that it was due to a degenerative condition. The parties agreed that any degenerative condition had been asymptomatic prior to July 2018. iii) The issue between the parties was whether the accident in July 2018 had caused the previously asymptomatic condition to become symptomatic. iv) Mr Maher’s case, on the basis of Mr Mohammed’s opinion, was that the accident accelerated the previously asymptomatic condition by some five years. His evidence was that he did suffer from some neck and shoulder pain at the time of the accident, but it became worse over time. v) AXA’s case was that the onset of symptoms in December 2018 had nothing to do with the accident. Its position was that there was no neck and shoulder pain between the date of the accident and December 2018.[15]The Judge summarised the medical evidence, including the expert reports and the contemporaneous documents, from paragraphs 66-82. He then considered the evidence in a section “Analysis of medical evidence/causation from paragraphs 83-98” followed by his section “Conclusion as to causation and injury” from paragraphs 99-107.[16]The Judge’s conclusions of fact were as follows: i) Mr Maher did have symptoms in his neck and left shoulder shortly after the accident, though of a much lesser level than those experienced from the end of 2018 (paragraphs 89 and 90). They were minor soft tissue symptoms (paragraph 99). ii) Mr Maher did mention those symptoms to A&E staff and to Mr Srinivasan, but the emphasis at the time was on his hand and arm, which at that time were the more obvious problems (paragraph 89). That explained why the symptoms were not noted. iii) The injuries sustained in the accident did not result in rendering symptomatic the previously asymptomatic degenerative changes (paragraph 99). That conclusion was based on his analysis of the competing medical expert evidence. iv) Any accident-related symptoms in the neck, left shoulder, arm and hand/fingers would have settled by three months after the accident (paragraphs 101-102).[17]The Judge then assessed general damages on the basis of a hand, arm and finger injury with a slight enhancement to take account of the neck and shoulder injury.[18]As to fundamental dishonesty, the Judge said this, at paragraph 107: In light of my findings, I have to consider whether the Defendant has satisfied me that Mr Maher is dishonest within the definition of section 57. The Claimant has asserted that he suffered from neck and shoulder pain, and I have already found that the Claimant did suffer from some neck and left shoulder pain from the accident. It seems to me that applying the test in Iver [sic] this would dispose of the issue however if I were wrong, it is clear to me that he did subjectively believe that to be the case when he saw the expert and gave his account for the expert report, his belief is genuinely held. Asserting that to be the case to the expert and at the trial is not in my view dishonest where the “evidence” to the contrary is the lack of recording in clinics with very different emphasis, unless I am satisfied that then asserting that would be considered dishonest by “ordinary decent people”. Where his belief is that he did have those symptoms after the accident and where there is no clear evidence that he did not, his continued assertion of that belief is not dishonest within the meaning of section 57. The Defendant therefore fails to discharge the burden of proof on that assertion.
Grounds of Appeal
[19]There are eight grounds of appeal ((a)-(h)), but they can be summarised as follows: i) The Judge was wrong to find that Mr Maher suffered soft tissue injuries in his neck and left shoulder in the accident. ii) The Judge was wrong to find that Mr Maher complained of such injury in the period from the accident until the end of 2018. iii) The Judge should have concluded Mr Maher was guilty of fundamental dishonesty.[20]AXA’s argument runs, in summary, as follows: i) All of the contemporaneous evidence is inconsistent with Mr Maher’s case that he suffered from neck and shoulder pain in the period between the accident and December 2018. He failed to complain of neck and shoulder pain at a time when he would have been expected to complain of that pain, if he was suffering from it. ii) The circumstances of the accident are inconsistent with Mr Maher sustaining an injury to his neck and shoulder. iii) In the light of those factors, the Judge’s conclusion was “wrong” in the sense required by CPR 52; or “absurd” or “nonsense” as Mr Hinchliffe KC put it. iv) Further, the Judge approached the evidence in the wrong way. He accepted Mr Maher as a truthful witness, without proper basis or explanation, and then made the documents fit his conclusions; rather than assessing the oral evidence against the documentary evidence.[21]Mr Maher’s case is that the Judge reached findings of fact that were open to him, having heard the witnesses and considered all of the oral and documentary evidence.[22]I will deal with the point about the Judge’s approach to the evidence first. Mr Hinchliffe KC argues that the Judge erred by simply accepting that Mr Maher was a witness of truth. Once he had accepted that, he found that his account of neck and shoulder pain was true. He then explained away the documents to fit the oral evidence.[23]I reject the suggestion that the Judge carried out such a sequential analysis. It would take a clear indication in the judgment for me to be satisfied that is what he did, as Mr Hinchliffe KC’s proposition simply does not reflect the way in which judges go about fact finding and writing judgments. By the time a judge comes to make findings, they have heard all of the evidence in the case. They will have heard and reflected on cross-examination in which inconsistencies between documents and oral evidence have been exposed and questioned. They weigh the totality in the round in making findings. It is clear from the judgment that the Judge did not simply accept the oral evidence of Mr Maher: he accepted it having tested it against the rest of the evidence in the case.[24]In a section headed “Impressions and analysis of witness evidence as to liability” (paragraphs 39-60) the Judge dealt with the evidence of the three witnesses, including Mr Maher himself. At paragraph 42 he referred to an inconsistency between documents which referred to him leaning into his van, and his oral evidence at court. He said that he found Mr Maher to be a truthful witness although he was sometimes guilty of “retrospective recall” – i.e. the effect of someone considering something a long time ago finds themselves sure of something when filling in finer details.[25]It is clear, however, that the Judge did not simply decide he believed Mr Maher to be a truthful witness based on his impression of him. The Judge gave consideration to all of the evidence in the round in making his assessment of Mr Maher’s credibility. Indeed, at paragraph 44 he expressly stated that in assessing credibility he had regard to the documentary evidence about his injuries: Whilst I will consider in more detail later the Claimant’s evidence of the injuries sustained; it seems to me that it is not possible to ignore his evidence about his injuries when considering his credibility generally.[26]He then went on to deal with the documents which were said to be inconsistent with Mr Maher’s case as to his injuries, before saying: His lack of clarity and consistency in his evidence on injury therefore has to be taken into account when considering his evidence on events of the collision however there is more than just his evidence to support his version of events.[27]I can see no error in the Judge’s overall approach to assessing the evidence.[28]The issue in question is whether Mr Maher was in pain in his neck and shoulder in the relevant period. AXA points to the absence of record of such pain in the contemporaneous documents. Mr Hinchliffe KC relies on the following evidence, none of which refers to neck or shoulder pain: i) The A&E notes, made on 12 July 2018. These refer to a trapped hand and to pain, bruising and swelling in the left arm. There is a note which records no tenderness to the left shoulder, clavicle, humerus or wrist. ii) The GP Records. These show a number of appointments from 13 July 2018 to September 2018 where Mr Maher complained of pain in his hand. iii) The Claim Notification Form dated 3 September 2018. The brief description of the injuries sustained was “Torn skin and soft tissue damage on left dominant fingers, hand and arm.” I note that the last page of the form indicates it was completed by Mr Maher’s legal representative. Neither the legal representative nor Mr Maher signed it. iv) An undated incident report form completed for BT, which makes no mention of neck and shoulder pain. v) A witness statement given by Mr Maher to the police on 23 December 2018. That referred to injury in the left hand, and resulting carpal tunnel syndrome. vi) The report of Mr Srinivasan, consultant orthopaedic surgeon, dated 5 December 2018 but based on an examination on 27 November 2018. That recorded symptoms in the left hand and forearm. The main symptom was a weakness in the left dominant hand. He noted “cervical spine movement does not re-elicit symptoms in his left hand.” Mr Srinivasan ordered nerve conduction studies and MRI scans of the neck and elbow.[29]AXA’s argument is that Mr Maher did not say that he was experiencing pain in his neck and shoulder on occasions where, if he was experiencing such pain, he would have been expected to report it.[30]This argument was raised at trial. Mr Maher was cross-examined by Mr Hinchliffe KC on the documents. The Judge rejected the argument. The question is whether he was wrong to do so. Mr Hinchliffe KC argues that any judge looking at the documents and considering the mechanics of the accident could only have concluded that Mr Maher did not suffer from a neck or shoulder injury in the accident.[31]Mr Hinchliffe KC relies on well-known cases dealing with the importance of contemporaneous documents, and the importance of testing evidence against the contemporaneous record.[32]The limitations of oral evidence have long been recognised: it can be difficult to tell whether someone is lying; where a witness is not lying, memory can be unreliable; demeanour in the witness box is unreliable. It has also long been established that an important test (but by no means the only test) of the credibility of oral evidence is to test it against the contemporaneous documents.[33]However, a degree of caution is required. As Ms Crorie submitted, the well-known limitations of oral evidence do not mean that a judge should disregard the oral evidence. Notwithstanding the limitations of oral evidence, it remains an important part of the trial process. The authorities I have cited above (Fage and Clin in particular) show that the higher courts continue to recognise the advantage the trial judge has in seeing and hearing the witnesses give evidence.[34]Just as the Court should guard against the risk that oral evidence may be unreliable, so too it should not fall into the trap of slavish adherence to the documentary record. Contemporaneous documents are very often the best guide to the true facts; but they are not necessarily so. The accuracy of the documentary record is not set in stone. It is, after all made up of a series of statements made by individuals, albeit at a time closer to the events. It too may be incomplete or inaccurate.[35]Here, we are dealing with the significance of an absence of reference to a particular alleged fact (the existence of neck and shoulder pain). It would be wrong simply to say, of a particular fact “if it is not in the contemporaneous documents, it can’t be true”. The absence begs a number of questions. Why is the fact not mentioned in the documents? Is it because it was not mentioned? If not, why not? Is it because it was not recorded by the maker of the document. If not, why not? Due to recording error, or misunderstanding, or because the maker of the statement did not think it relevant to the purpose for which the document was being created? These are common examples, in particular cases there may be other questions.[36]At trial, these are all matters of assessment for the Judge, who weighs the various forms of evidence, examining their consistencies and inconsistencies in the course of reaching findings of fact.[37]Unlike the Judge, I do not have the benefit of seeing the witness. I did not see how the witness dealt with the documents that are said to be inconsistent with his case. Indeed, not only have I not seen the witness give evidence: I was not provided with a transcript of his evidence. I can make no assessment of his answers to questions about the documents, beyond that which is recorded by the Judge in his judgment.[38]It is plain from the judgment that the Judge had in mind the contemporaneous documents and the absence of reference to neck and shoulder pain. He also had in mind the difference of opinion between the experts which was, in part, driven by the significance they attached to the lack of reference to neck and shoulder pain in the contemporaneous documents: see for example paragraph 79, where the Judge quotes from the expert joint report. Mr Mohammed, in his reports and in his Part 35 answers, was of the view that neck and shoulder pain could have been overlooked, as the less significant symptom in the initial months, but that the neck and shoulder pain could have become the significant symptoms as other symptoms resolved. He considered whether there was an explanation why the symptoms were not mentioned in the documents. Having considered the contemporaneous documents, the expert evidence and Mr Maher’s evidence the Judge was satisfied that the absence of record could be explained and that he accepted the oral evidence that Mr Maher did suffer from neck and shoulder symptoms and did complain of it at the time (paragraphs 87-90). The Judge was best placed to make this assessment. It was one he was entitled to make, and I do not accept that he was wrong in his conclusion.
The mechanics of the injury
[39]There are two closely related points raised by AXA: i) The way in which the accident occurred, as found by the Judge, is inconsistent with Mr Maher sustaining neck and shoulder injury. ii) When Mr Maher gave his account of the accident to Mr Mohammed, he knowingly gave a false account of how the accident happened, so as to explain the neck and shoulder injury.
Are the injuries inconsistent with the accident facts?
[40]This turns on a question of fact (what happened in the accident?) and an expert medical question (could those events have caused the neck and shoulder symptoms?).[41]The problem with AXA’s argument is that the second question is a medical question. How is the Court to judge whether an accident, found to have occurred in a particular way, could or could not lead to pain in a particular location?[42]In some cases, it may be argued that the answer is obvious. For example, if something is dropped on a claimant’s big toe, it is difficult to see how that would lead to pain in the ear.[43]In this case, Mr Maher was trapped by Mr Grogan’s pickup between his own vehicle and its door, in a way that (it is agreed) he sustained an injury to his left hand and lower arm. He was unable to extricate himself until Mr Grogan moved his vehicle. I am invited to say that the accident could not have produced symptoms further up the same arm: i.e. in the left shoulder and left side of the neck. I am not at all satisfied that necessarily follows. It is a question for the medical experts.[44]Mr Mohammed was not asked this question. AXA’s lawyers asked Part 35 questions of Mr Mohammed. They asked what the mechanism was by which Mr Maher injured his neck and shoulder. Mr Mohammed’s answer referred to the account given to him, which was that Mr Maher’s vehicle was struck while he was bending into his van. But they did not ask whether an accident on facts as in due course were found by the Judge (i.e. where Mr Maher was standing upright and still) could have caused neck and shoulder pain. I was not told that this question was addressed by the Defendant’s expert. Mr Hinchliffe KC fairly accepted that there was no medical evidence to the effect that the accident facts could not have caused the symptoms.[45]The Judge made findings as to how the accident occurred and found that the accident caused some neck and shoulder pain. He had the benefit of seeing the witnesses describe the accident both in words and by gesture, and of reviewing the photographs and other evidence. It cannot be said that he was wrong in his findings.
Did Mr Maher knowingly give Mr Mohammed a false account of the accident?
[46]The passage upon which AXA relies is as follows: [Mr Maher] tells me that his vehicle was struck as he was bending inside the vehicle. The back of the vehicle swung as the 4x4 struck his vehicle. He was trapped by the door and squashed.[47]AXA says that the account that he was bending into the vehicle was not true. AXA’s proposition is that Mr Maher knew that the facts of the accident could not explain his neck and shoulder injuries, so he concocted this account.[48]I reject that submission. i) It is predicated on the notion that Mr Maher would have understood that the true facts of the accident could not account for his claimed symptoms. I have found above that that is not established on the evidence. ii) Even if it were clear now, it is highly unlikely that it would have been clear to Mr Maher, and that he would have realised that he needed to give a particular factual account of the accident to explain his symptoms. iii) Ms Crorie points out that if the account to Mr Mohammed was false, it is at odds with the account he gave in his witness statement and at trial. Why, she quite fairly asked, would Mr Maher concoct an account for the expert and then give a different, less favourable, account in his evidence at trial?[49]In any event, the Judge had the inconsistency in mind – he referred to it at paragraph 42. He clearly did not regard the discrepancy as material in his assessment either of the mechanics of the injury, or whether Mr Maher had been dishonest. He was entitled to reach the conclusions he reached.
Fundamental Dishonesty
[50]At paragraph 107, the Judge stated that even if he were wrong in finding that Mr Maher did suffer from neck and shoulder pain following the accident, he subjectively believed that he did when he saw his expert. He was not therefore dishonest.[51]Mr Hinchliffe KC’s challenge is that Mr Maher must have known whether he suffered neck and shoulder pain at a particular time or not. In my judgment, the Judge was entitled to make the finding he made in paragraph 107. The medical history is complicated. By the time Mr Maher saw Mr Mohammed, more than a year had passed since the accident. He had suffered from hand and arm pain; on any view he later suffered from neck and shoulder pain and had undergone various assessments to determine the cause of his ongoing problem. On any view, the neck and shoulder pain in the early period following the accident was less significant than the hand and lower arm symptoms. It is not necessarily an easy exercise to look back over a history of more than a year and pinpoint where pain was experienced at any particular time. The Judge was entitled to find that Mr Maher subjectively believed in the account he gave of his symptoms. Having made that finding, he was right to conclude that his behaviour was not dishonest.