In the matter of MARK MENARY v JOE DARNTON (2016) the Defendant awarded Costs for defending the claim.  A claim was made by the claimant for personal injury and associated damages including vehicle damages following a road traffic accident. At the time of the incident the claimant was driving his motor vehicle and the defendant riding his motorcycle. The claimant alleged whilst being stationary the defendant collided into the rear of his vehicle. Throughout the defendant disputed the claim that no contact between the two vehicle had occurred.

As the claim was brought following the introduction of qualified one-way costs shifting. District Judge did not disapply

At the trial, the District Judge agreed with the defendant, no contact had been made but did not agree the claimant had been fundamental dishonesty. As a result the District Judge did not disapply the same under CPR r.44.16(1).

Appeal

The defendant appealed the decision that the claimant had not acted ‘fundamentally dishonest’ and to not grant the defendant costs in this instance.

At the appeal the first point was to consider whether the claimant had been ‘fundamentally dishonest’ in pusuing the claim. The Judge seperated the distinction from the claims which from time to time are exaggerated and concealments might be dishonest, but are not ‘fundamentally dishonest’, as they did not go to the root of the claim. Second, the fundamental dishonesty was related to the claim, not the claimant. As it had been found the claim was fundamental dishonesty, then in accordance with the overriding objective, the defendant should be allowed to recover the costs incurred in defending the action which on the balance was ‘fundamentally dishonest’.

The deputy district’s decision could not stand. His finding that there had been no collision, no road traffic accident, no injuries suffered, no damage to his vehicle. Additionally, the deputy district judge had failed fully consider two vital documents; the first, a record of the claimant’s visit to a medical walk-in centre on the day of the alleged accident in which he was reported as having told staff that he had just been injured in a car crash; the second was a telephone attendance note following a conference between the claimant and his solicitor in which he also claimed to have been injured in a road traffic accident on the day in question. These alone clearly show the claim was fundamentally dishonest.