QOCS Protection Lost Where Dishonesty Inflated Claim Value By 100%

QOCS Protection Lost Where Dishonesty Inflated Claim Value By 100 Percent

Deputy High Court Judge Christopher Kennedy KC dismissed the claimant’s personal injury claim on liability grounds but went on to make detailed findings of fundamental dishonesty under CPR 44.16, based on surveillance evidence and other material inconsistencies in the claimant’s presentation, removing QOCS protection and allowing full costs enforcement.

O’CONNELL v THE MINISTRY OF DEFENCE [2025] EWHC 2301 (KB)

In O’Connell v Ministry of Defence the court considered the defendant’s application for a finding of fundamental dishonesty to displace the claimant’s QOCS protection under CPR 44.16(1). Following dismissal of the substantive personal injury claim on liability, the costs hearing focused on whether the claimant’s presentation of her disability was fundamentally dishonest. The defendant relied on surveillance evidence from March 2022 showing the claimant performing physical activities inconsistent with her reported disability, evidence of her responsibility for horses contrary to her accounts, and representations about vehicle adaptations, including Facebook messages seeking false evidence about work that had never been done. The claimant contended the surveillance showed brief, exceptional activity enabled by medication and that inconsistencies were due to litigation stress. Applying the dishonesty test from Ivey v Genting Casinos Ltd [2018] AC 391, Christopher Kennedy KC sitting as a Deputy High Court Judge found the claimant knew her evidence was untrue and that it was dishonest by ordinary standards. Applying Howlett v Davies [2018] 1 WLR 948 and the three questions from Muyepa v Ministry of Defence [2022] EWHC 2648, the court found the dishonesty began by December 2018, went to the root of the claim, and would have resulted in the dishonestly inflated claim being worth perhaps double the underlying valid claim. The court granted permission to enforce any costs order to its full extent, finding this an appropriate case to engage the exception to QOCS protection in CPR 44.16(1).

This is a claim which I have found to be fundamentally dishonest. The Claimant has persisted with her dishonesty over a long period. She has sought to engage others and her attempts to conceal the truth have been sophisticated. It is I find an appropriate case in which to grant permission to the Defendant to enforce any order for costs it may obtain against her to its full extent.

Citations

Smith v Ainger [1990] The Times, 16 May Freeman v Higher Park Farm [2008] EWCA Civ 1185 An individual animal’s characteristics and the factual context at the time of injury must be analysed when determining likelihood and severity of injury under section 2(2)(a) of the Animals Act 1971. Lynch v Ed Walker Racing [2017] EWHC 2484 (QB) Whether severe injury is ‘likely’ from a fall involving a horse under section 2(2)(a) depends on the specific evidence and factual circumstances of the incident. Koestler v Thomas [2024] PIQR P9 A violent buck by a horse can be sufficient to demonstrate that a resulting injury was likely to be severe within the meaning of section 2(2)(a) of the Animals Act 1971. Welsh v Stokes [2007] EWCA Civ 796 Knowledge of a horse’s characteristics under section 2(2)(c) can be inferred from knowledge of the general behaviour of horses in specific circumstances, not just the individual animal’s prior actions. Turnbull v Warrener [2012] EWCA Civ 412 Statements about injury likelihood in other cases are case-specific and cannot substitute for a fact-based assessment required under section 2(2)(a) of the Animals Act 1971. Boyd v Hughes [2025] EWHC 435 (KB) When applying section 2(2)(b), a reaction to a broad range of potential stimuli does not meet the statutory requirement for a characteristic displayed only at particular times or circumstances. Dennis v Voute [2022] EWHC 2117 (QB) The likelihood of severe harm under section 2(2)(a) must be judged from a hypothetical reasonable observer’s perspective at the moment the animal action occurs, not with hindsight of the actual injury. Mirvahedy v Henley & Henley [2003] UKHL 16 The word “likely” in section 2(2)(a) means “reasonably to be expected”, establishing that severity is tested prospectively, not by reference to what actually occurred. Ivey v Genting Casinos Ltd [2018] AC 391 Dishonesty is assessed objectively according to the standards of ordinary decent people, once a claimant’s knowledge or belief of the facts is established. Howlett v Davies [2018] 1 WLR 948 Dishonesty is “fundamental” if it goes to the root of a claim or substantial part of it, rather than being incidental or limited to a minor issue. Shaw v Wilde [2024] EWHC 1660 (KB) A claimant who signs a statement of truth is expected to understand and vouch for the document’s accuracy; failure to do so can support a finding of dishonesty if the contents are untrue. Denzil v Mohammed [2023] EWHC 2077 (KB) When determining fundamental dishonesty, courts must avoid over-elaboration and instead focus on whether the dishonesty substantially affects the case on liability or quantum. Brian Muyepa v Ministry of Defence [2022] EWHC 2648 (KB) Assessment of fundamental dishonesty includes evaluating the timing, scope, and financial impact of the dishonest conduct in the context of the claim. Ras Al Khaimah Investment Authority v Azima [2021] EWCA Civ 349 New evidence discovered during trial may be admitted where relevant, provided a fair process is followed and the opposing party had an opportunity to respond.

Key Points

A finding of fundamental dishonesty under CPR 44.16(1) permits the court to allow enforcement of an adverse costs order in full against a claimant who would otherwise benefit from QOCS protection. [159–160]
The assessment of whether a claimant has been fundamentally dishonest requires the court to apply the ordinary civil standard of proof (balance of probabilities), taking into account the seriousness of the allegation. [166]
The concept of “fundamental dishonesty” under CPR 44.16(1) requires dishonest conduct which substantially affects the presentation of the claim as a whole or of a significant part, judged in the context of the litigation. [162–163]
The appropriate approach to determining fundamental dishonesty includes evaluating (i) when the dishonesty commenced, (ii) whether it taints all or only part of the claim, and (iii) how the dishonestly inflated claim compares to the true value of the legitimate claim. [164]
Where fundamental dishonesty is established, robust and sophisticated attempts to mislead—particularly where they involve false statements verified by a statement of truth, concealment of relevant facts, or third-party involvement—may justify the removal of QOCS protection and full costs enforcement. [192, 195]

"The Claimant's dishonesty goes to the heart of her claim. She has been dishonest in relation to each aspect which I have discussed in order to present a picture that she is materially more disabled than she in fact is. That false picture supported a claim for higher general damages than her actual disability would have permitted, a significantly greater loss of earnings claim, principally because of the effect it has on her presentation of her residual earning capacity and justified a claim for future support to which she would otherwise have not been entitled."

Key Findings In The Case

The court found that the Claimant had dishonestly misrepresented the extent of her left upper limb disability, including her functional limitations, to medical experts, within her signed witness statements, and in her schedule of loss. This misrepresentation was directly contradicted by surveillance footage showing her undertaking physical tasks, including driving a manual horsebox, carrying items, and using her left arm above shoulder height [174–176].
The Claimant was found to have fabricated a narrative concerning the adaptation of her vehicle from manual to automatic. The judge accepted the Defendant’s evidence that two different vehicles with the same number plate and different VINs were used, and that the Claimant’s current automatic vehicle was acquired after the surveillance period, in an attempt to support a false account of adaptation. This was buttressed by messages showing her efforts to obtain false corroborating evidence [183–186].
The court concluded that the Claimant’s dishonesty extended to her claimed need for care and assistance, including support with cooking, dressing, and mobility, which she knew to be untrue in light of her real functional capacity, and included in a schedule of loss endorsed with a statement of truth seeking over £2.4 million in damages [147, 149, 192–193].
The judge determined that the Claimant falsely claimed limited part-time work capacity in her case presentation and expert evidence, despite stating at a disciplinary hearing around the same time that she had been working full-time hours. The court found the part-time earnings claim to be dishonest and intentionally misleading [158, 190].
The court held that the Claimant’s dishonesty was fundamental, in that it went to the root of her claim and substantially affected its presentation. The dishonesty spanned multiple core aspects of the pleaded claim (including pain levels, employment capacity, and vehicle use), began at least as early as late 2018, and if uncorrected, would have led to a materially inflated award of damages. Accordingly, the court disapplied the Claimant’s QOCS protection under CPR 44.16(1), allowing full costs enforcement against her [164, 194–195].

"One of the ironies in this case is that the Claimant would still have had a substantial claim even if she had not been dishonest as her injury cut short her army career and she will struggle to earn or have a pension at a similar level. The credit she would have had to give for her residual income would however have been substantially greater and her other claims would have been a great deal more modest. I have not attempted a precise valuation but the underlying valid claim may well have been worth no more than 50% of the inflated claim."

Ms O’Connell, a former gunner in the Royal Horse Artillery, brought proceedings against the Ministry of Defence following a riding accident in September 2015. The claim was pursued both in negligence and under the Animals Act 1971, seeking damages totalling £2,446,738.66.

The defendant sought not only dismissal of the claim but also a finding of fundamental dishonesty and permission to enforce any costs order against the claimant under CPR 44.16(1), which provides that costs orders “may be enforced to the full extent of such orders with the permission of the court where the claim is found on the balance of probabilities to be fundamentally dishonest.”

The allegations centred on surveillance evidence from March 2022 showing the claimant performing physical activities inconsistent with her reported disability, together with evidence regarding her responsibility for horses, representations about vehicle adaptations, and other material inconsistencies.

The Parties’ Positions on Fundamental Dishonesty and Costs

The defendant argued that the claimant had misrepresented her disability in a manner that constituted fundamental dishonesty. They relied particularly on surveillance footage showing the claimant driving a manual transmission horsebox and performing various physical tasks using her allegedly disabled left arm. The defendant submitted that the dishonesty tainted the entire claim, affecting claims for general damages, loss of earnings, and future care costs.

The defendant also relied on sophisticated attempts to conceal evidence, including Facebook messages showing the claimant seeking someone to provide false evidence about vehicle adaptations that had never occurred.

The claimant contended that she had been consistent in reporting her disability to medical experts and that the surveillance evidence showed only brief periods of exceptional activity enabled by pain medication and a spinal cord stimulator. She argued that any inconsistencies could be explained by the stress of lengthy litigation and pointed to her continued invasive treatment as inconsistent with dishonesty.

The Court’s Analysis | Applying CPR 44.16 Fundamental Dishonesty Principles

The court applied the dishonesty test from Ivey v Genting Casinos Limited, requiring first a subjective assessment of the claimant’s actual state of knowledge, then an objective determination of whether the conduct was dishonest by the standards of ordinary decent people.

For fundamental dishonesty, the court applied the approach in Howlett v Davies, distinguishing between dishonesty that is merely “incidental” or “collateral” and dishonesty that goes “to the root of either the whole of his claim or a substantial part of his claim.”

The judge considered the three questions from Muyepa v Ministry of Defence: when the dishonest conduct started, whether it tainted the whole claim, and how the value of the underlying valid claim compared with the dishonestly inflated claim.

Key Findings on Dishonesty

The court found that the claimant had been fundamentally dishonest across multiple areas:

Surveillance evidence: The differences between what the claimant told experts and what she could be seen doing were “stark” and not capable of explanation by assistance from her friend or by pain medication. The claimant’s presentation on video was “of someone with normal or near normal function in their left upper limb and shoulder.”

Responsibility for horses: The court rejected the claimant’s evidence that she was merely helping a friend, finding that she had been responsible for the care of horses on a long-term basis, contradicting her accounts of disability.

Vehicle adaptations: The court found that the claimant owned two different white Audi A3 vehicles, transferring the number plate between them in December 2022 after being asked to provide evidence of adaptations. Facebook messages demonstrated the claimant seeking false evidence about vehicle alterations that had never occurred.

Employment capacity: The claimant’s schedule claimed she was only fit for part-time work, but she told an investigator she was working full-time hours.

The CPR 44.16 Fundamental Dishonesty Finding

Applying the Muyepa questions, the court found:

- The dishonest conduct started by December 2018 when the claimant told her orthopaedic expert she had adapted her vehicle when she had not.
- The dishonesty tainted the whole claim because it went to the extent of the left upper limb disability which formed the basis for all compensation claims.
- The underlying valid claim would have been worth perhaps 50% of the dishonestly inflated claim, despite the claimant still having had a substantial claim due to her lost army career.

The Costs Decision

The court concluded that the dishonesty went to the heart of the claim, supporting higher general damages, a significantly greater loss of earnings claim, and a claim for future support to which she would not otherwise have been entitled.

The judge noted that the claimant had “persisted with her dishonesty over a long period” and had “sought to engage others” with “sophisticated” attempts to conceal the truth. The court found this “an appropriate case in which to grant permission to the Defendant to enforce any order for costs it may obtain against her to its full extent.”

The QOCS protection that would ordinarily apply to this personal injury claim was therefore displaced, allowing the defendant to enforce costs orders against the claimant without the usual restrictions under CPR 44.13-44.16.

Broader Implications

The case demonstrates the application of established fundamental dishonesty principles to sophisticated attempts at concealment. The court’s willingness to examine Facebook messages and vehicle registration transfers shows the detailed scrutiny that may be applied where fundamental dishonesty is alleged.

The judgment confirms that where dishonesty affects the core presentation of a claimant’s disability rather than being merely collateral to minor aspects of the claim, removal of QOCS protection will follow. The case also illustrates how multiple strands of inconsistent evidence can combine to establish a pattern of fundamental dishonesty that taints an entire claim.

Fundamental dishonesty found on appeal by reason of material non disclosure

Mixed Claims And CPR 44.16(2)(b) | Exceptions To Qualified One Way Costs Shifting (QOCS) – High Court guidance on when QOCS protection can be displaced, including analysis of fundamental dishonesty principles under CPR 44.16(1) and the Howlett v Davies test.
QOCS Applied To Mixed Claim Against Police | No Exceptional Features Found – High Court decision on CPR 44.16(2)(b) discretion in mixed claims involving personal injury and misconduct allegations, providing contrast to cases where QOCS is displaced.
The Application of QOCS in Mixed (PI and non-PI) Claims – Court of Appeal decision in Brown v Commissioner of Police establishing the discretionary framework for QOCS in mixed claims and the “exceptional features” test.