4th August 2022
After a 7-day trial, James Arney QC (acting for the claimant and instructed by Grant Incles of Russell-Cooke solicitors) was successful in securing over £970k for a 45-year old claimant accused of FD.
The claimant’s award (for the defendant’s clinical negligence) included over £½m for future loss of earnings pursuant to Ogden 8, and damages and interests penalties for beating her own Part 36 offer.
The judgment includes criticisms of several experts, and offers valuable lessons to practitioners on both sides of the claimant/defendant divide.
In a claim arising from vaginal mesh surgery in 2014, it was agreed that the claimant suffered a variety of serious symptoms including neuropathic pain, fibromyalgia and the need to self-catheterise.
The defendant’s allegations of dishonesty focussed on the claimant’s failure to disclose offering beauty treatments over several years post-accident, on accusations that she had exaggerated symptoms to experts, and on social media material and surveillance footage.
In dismissing the allegations of dishonesty, the Court was critical of several defendant experts on whose opinions the defendant relied in advancing its FD case. Failings included reaching beyond their fields of expertise, inaccuracies, unbalanced opinion, being “blinkered” in their approach and “potentially very misleading”.
The judge found that the claimant was not dishonest, accepting that she had made little income from performing beauty treatments, and accepting that the claimant had not considered this to be “work” comparable to her successful pre-accident career in marketing.
The Court’s award included over £½ million for future loss of earnings calculated by reference to the Ogden 8 methodology. The award also includes Part 36 penalties for the claimant having beaten her own Part 36 offer made in February 2021. Penalties included additional damages of over £68,000, interest on damages at 7.5% above base rate amounting to over £40,000, an indemnity costs order and interest on costs (again at 7.5% above base).
The judgment offers valuable lessons in the need to “drill down” to the detail beneath the superficial impression created by the material that the Defendant had obtained. The judgment also serves as a warning to experts that if they choose to enter the arena of commenting on surveillance material in particular, they must do so in a considered and balanced way.
This case also serves as a further reminder of the high stakes involved when FD is alleged. The claimant faced the prospect of receiving no damages despite her conceded symptoms, with the spectre of committal proceedings that may have followed.
Whilst each of these cases turns on its own facts, the judgment offers valuable lessons for claimants’ representatives (when their clients are faced with FD allegations) and defendant insurers (considering alleging FD) alike.
This case will be featured in greater detail in the first edition of the TGC Personal Injury Newsletter, which will be available at the start of next month.