In Vengadeswara Raw Gopalakrishnan v The Home Office [2026] EWHC 2856 (KB), the High Court tried fundamental dishonesty after discontinuance of a claim that included personal injury, and permitted the Home Office to enforce its costs order in full. The decision sets out the procedural steps that took the defendant from a notice of discontinuance, through a PD 44 para 12.4(c) direction, to permission under CPR 44.16(1) displacing the QOCS limit.
Background
The claim arose out of the claimant’s immigration detention between September 2013 and February 2014. It began in October 2013 as an application for judicial review challenging the refusal of asylum and the decision to remove him, and was amended to add a claim for damages for personal injury [2]. That claim was raised in Amended Grounds of Claim served on 7 November 2014 [40].
In 2023 the public law aspects were compromised by consent and the personal injury claim was transferred to the King’s Bench Division, with a 10 day trial listed from 19 October 2026 [3]. The Schedule of Loss claimed over £7 million [4].
During 2026 the Home Office served new evidence and amended its Defence to plead fundamental dishonesty. The claimant then discontinued. On 20 August 2026 Lambert J vacated the trial and, pursuant to CPR PD44 para 12.4(c), directed a trial of the issue of whether the claim was fundamentally dishonest [6].
Costs Issues Before the Court
The Home Office sought a finding under CPR 44.16(1) that the claim was fundamentally dishonest [25]. If that finding was made, the further question was whether to give permission to enforce, to the full extent, the costs order arising on discontinuance under CPR 38.6 [108]. Lambert J had also directed that the claimant’s capacity be considered at the start of the trial, and a litigation friend had acted for him since 2014 [10], [11].
The Parties’ Positions
The Home Office argued that the claim was fundamentally dishonest because the claimant consciously fabricated or exaggerated his injuries and conspired with his litigation friend, Ms Mathew, to represent himself as seriously injured [26]. Its primary case was dishonesty from the start; alternatively, concealment of a later recovery would still amount to fundamental dishonesty [27]. Mr Fetto put the case squarely on deliberate invention or exaggeration of symptoms [35].
The claimant appeared in person. He filed no witness statement on fundamental dishonesty and no skeleton argument [15], [17], and made brief oral submissions at the hearing [24].
The Court’s Decision
Mansfield J started with CPR 38.6: a claimant who discontinues is liable for the defendant’s costs up to the date of service of the notice of discontinuance, unless the court orders otherwise [28]. The case was, however, governed by QOCS. Under CPR 44.14, costs orders against a claimant may be enforced without permission only up to the aggregate of damages, costs and interest ordered in the claimant’s favour. CPR 44.16(1) allows enforcement to the full extent, with permission, where the claim is found on the balance of probabilities to be fundamentally dishonest [29].
The judge then explained how the allegation survived the discontinuance. He said that “An allegation of fundamental dishonesty may remain live notwithstanding the discontinuance of the claim.” Under CPR PD 44 para 12.4(c), the court may direct that the issues be determined although the notice of discontinuance has not been set aside, and that was the effect of Lambert J’s order of 20 August 2026 [30]. Fundamental dishonesty after discontinuance was therefore tried as a separate issue, the 10 day trial having been vacated [6].
Two points on scope followed. QOCS applies to proceedings which include a claim for personal injuries under CPR 44.13(1), regardless of whether they also include other claims [29], [31]. Where the personal injury claim is added by amendment, QOCS applies to the proceedings both before and after the amendment, as held in Pathan v Commissioner of Police of the Metropolis [2022] EWHC 3244 (KB) [32]. The claim here had begun as judicial review, and the personal injury claim was added by amendment [2].
The burden lay on the Home Office to prove fundamental dishonesty on the balance of probabilities, and there were two questions: was there dishonesty in the claim, and was it fundamental to the claim [33]? Dishonesty was assessed by the test stated by Lord Hughes in Ivey v Genting Casinos Limited [2018] AC 391 [34]. For the fundamental element, the judge relied on Howlett v Davies [2017] EWCA Civ 1696, where Newey LJ approved a passage contrasting fundamental dishonesty with dishonesty as to a collateral matter or perhaps a minor, self-contained head of damage [37].
Before turning to the merits, the judge found that the claimant had capacity to conduct the litigation [13]. Because no witness statement had been filed in accordance with Master Stevens’ order, the claimant could not give oral evidence without permission under CPR 32.10 [18]. Permission was offered, with a warning as to the privilege against self-incrimination, but on the second day he chose not to give evidence [20], [22].
The judge found the claim fundamentally dishonest. He said it would have been sufficient that the claimant had been dishonest in the presentation of the claim in 2025 and 2026, but found that the claim had been dishonest since it was first raised in 2014 [107]. He made no findings on the public law element or the false imprisonment claim, but held that the personal injury claim was a significant part of the claim throughout. He concluded that “The Claimant’s dishonesty is fundamental to the claim as a whole” [106].
The order followed the two stage structure. The claimant was liable under CPR 38.6 for the Home Office’s costs of the whole claim up to service of the notice of discontinuance, and the judge granted permission under CPR 44.16(1) to enforce that order to the full extent. Any application for costs after the notice of discontinuance was left to the hand down hearing [108].
Practical Implications
This is a first instance decision, but it maps the route for a defendant facing a notice of discontinuance in a QOCS case. Discontinuance produces a CPR 38.6 costs order, yet without a fundamental dishonesty finding that order remains subject to the CPR 44.14 limit [28], [29]. The defendant’s practical recovery therefore depends on permission under CPR 44.16(1).
Defendants who wish to pursue fundamental dishonesty after discontinuance should seek a direction under PD 44 para 12.4(c), as the Home Office obtained here, together with directions for evidence and, where a litigation friend has acted, for capacity to be determined at the start of the trial [6], [10], [15]. The allegation should be pleaded and the case framed on deliberate invention or exaggeration [6], [35].
In mixed claims, the defendant should be ready to show that dishonesty in the personal injury element goes to the root of the claim as a whole, as it did here [106]. Where the personal injury claim was added by amendment, costs of the pre-amendment period also fall within QOCS [32], so the permission sought should cover the whole claim. Costs after the notice of discontinuance were left for a separate application, so they should be addressed expressly [108].
For claimants, discontinuance does not close off the issue. A claimant who files no witness statement by the court’s deadline will need permission under CPR 32.10 to give oral evidence at the trial of the issue [18].
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