Summers v Fairclough Homes Ltd.

On 16 April of this year HHJ Tetlow assessed damages in a claim for damages for personal injury in the sum of some £88,000, but he gave permission to appeal to this court.

The application was slightly late but we forgive that and we extend time.

The appellant is the defendant to that claim for damages backed by an insurance company and the concern in a nutshell is this. This claimant was an out-and-out liar, who quite fraudulently exaggerated his claim to a vast extent, but he fooled nobody. His deception had been discovered by the insurers who had kept some surveillance of him and the result is that his fraud prospered him naught.

Mr Norris QC, who appears for the appellant, would take issue with that and would say that his fraud prospered him to the extent of the £88,000, which he in fact recovered, and Mr Norris would wish to argue that fraud as substantial as this merits a condign action by the courts to stamp out this dishonest behaviour, and he submits that the proper course for the judge to have adopted was to strike out this claim in its entirety and give him literally nought, absolutely nothing, even though he had suffered a genuine injury as a result of the admitted negligence of the defendant, nonetheless because he is a liar and a cheat he should get nothing.

The difficulty facing that submission is that it was exactly the submission urged upon this court in the case of Shah v Ul-Haq [2009] EWCA Civ 542 and Mr Norris's slight embarrassment, which he surmounted with great charm and which we accepted with great fortitude, was that the lead judgment in that that was given by Smith LJ, who, having considered exactly the same argument and having had urged upon her the case of Arrow Nominees v Blackledge [2000] 2 BCLC 167, nonetheless concluded that the court had no power to strike out the claim in its entirety, notwithstanding the disgraceful behaviour of the claimants in that case. Her conclusion was that, quoting from paragraph 21 of that judgment:

In Widlake v BAA Limited [2009] EWCA Civ 1256 Smith LJ and Wilson LJJ and I were dealing with an exaggerated claim dishonestly put forward where the dishonesty had been discovered and the issue related to costs. We agreed with Ul-Haq and ruled accordingly.

So there are two cases directly in conflict with the submissions Mr Norris wishes to advance and we see no reason why we should not follow them. It is submitted that those decisions are in stark contrast and in conflict with the decision in Arrow Nominees, where I am pleased to see that there at least I am on the side of the angels, as Mr Norris would select his team of angels. Arrow Nominees was, however, a case of a wholly different kind where it was no longer possible to do justice, given the fraud perpetrated by Mr and Mrs Blackledge in that case. So Arrow Nominees seems to me to be easily capable of being distinguished.

In the result therefore I feel bound to apply the rule of stare decisis and to say that this appeal should be dismissed accordingly.

The issue then arises as to whether or not we give permission to appeal to the Supreme Court. I take the view that this is not a case like Rickards v Rickards [1990] Fam 194. I am not persuaded that there are conflicting decisions of this court which make it easy simply to say “Go off to their Lordships and they will sort it out.” It seems to me therefore that we should leave it to their Lordships to decide whether or not this is a point which they wish to take. I do understand the argument that the insurance industry is hugely concerned by what may be a proliferation of false and exaggerated claims. It really is a matter of concern to the insurers, but the point whether there is a power to strike out either under the CPR or under inherent jurisdiction and if so whether the county court where most of these cases are to be heard has that inherent jurisdiction, interesting though those questions are, they are for their Lordships to determine. So I would dismiss the appeal and refuse permission to appeal to the Supreme Court.

I agree