Findings of fact9/8/2023 ![]() ![]() ![]() ![]() Problems may arise with statements of case signed by legal representatives, but that is beyond the scope of this article. As this is usually a matter of record, it should not give rise to difficulty. That conduct may have been in oral evidence, in Part 18 responses, in a medical report, in a statement of case etc. This is the “conduct” that is referred to in Ivey. Secondly, the court has to ascertain what the claimant has said about those facts. We shall return to this first stage at the end of this article. Where the defendant wishes to argue that the claimant has been dishonest as to certain facts, it is therefore vital that it is made clear to a trial judge that findings on issues x, y and z are required. In practical terms, however, there is more to it than that.įirst, the court has to ascertain the facts themselves. The passage cited above suggests that it is a two-stage test: ascertain the (claimant’s) belief as to the facts, then apply the objective standards of ordinary decent people. Where it does happen, it is often because the trial judge has failed to follow the steps that are required by Ivey and that in turn may be because those steps are not clearly understood by the court. There is often disagreement between the parties as to whether the findings made entail dishonesty. As a result, it is unfortunate that the passage is perhaps a little more densely written than is ideal for such circumstances, whereby somewhat harried district judges, or deputies, are striving in limited time to make sense of fiercely contested evidence. It is in the nature of claims where dishonesty is in issue, that this is in many cases after 4pm, or even after the court building is supposed to have shut. In a personal injury trial, this passage is often cited only after the trial judge has given judgment on the claim. There is no requirement that the Defendant must appreciate that what he has done is, by those standards, dishonest.” 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 or ordinary decent people. 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 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 legal meaning of the term “dishonesty” was clarified in Ivey v Genting Casinos UK Ltd (T/A Crockfords Club) UKSC 67. In some cases, however, it is not so straightforward and so this article is concerned with the practicalities of those cases. We know what a claimant has alleged and we know whether or the rejection of that allegation will entail a finding that it was dishonest – take the example of a bogus passenger claim. In many cases, the question of honesty/dishonesty is straightforward. Now that we know what is fundamental to a claim, however, the argument seems to have shifted in some difficult cases to whether the contested parts of a claim were dishonest. I have been involved in a number of cases in which it has been necessary to appeal a failure to make a finding of fundamental dishonesty.Īs the case law and journals attest, the implementation of the Jackson reforms and the new rules on QOCs initially gave rise to considerable debate – mostly now settled – as to the meaning of “fundamental” in the context of CPR 44.16. ![]()
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