When an accusation of fundamental dishonesty is fundamentally flawed

An allegation of fundamental dishonesty happens when a defendant argues that the claimant has lied or exaggerated in their statements to the court. These sorts of allegations used to be rare, however they seem to be far more common now. In medical negligence circles previously, they appeared to be limited to cautionary tales that needed to be included in precedent documents for completeness. Those days are well and truly over.

The worry is that the increasing number of cases where fundamental dishonesty allegations are being thrown at claimants could deter honest claimants from bringing cases.  

Having years and years of your Facebook posts printed out and pored over by numerous lawyers is certainly an unpleasant thought. Having men sitting in a car outside your flat with video cameras, as happened to my client Ms Cullen, is even worse. 

The case of Cullen -v- Dr Henniker-Major.   

Ms Cullen brought a claim for the delayed diagnosis of her laryngeal cancer. She claimed her GP, Dr Henniker-Major, failed to refer her to hospital for investigations after she sought advice for symptoms that were the early signs of laryngeal cancer. These symptoms should have very clearly signalled laryngeal cancer, and Ms Cullen should have been referred for further investigation and treatment.

As a result of the delay, Ms Cullen had to undergo more extensive treatment for the cancer than would otherwise have been required. This led to a total laryngectomy. The laryngectomy means that Ms Cullen now breathes through a stoma in her neck and speaks via a valve located in the wall between her trachea and oesophagus. 

Dr Henniker-Major admitted early on in the case that she had been negligent. However, instead of working to agree a settlement, she alleged that Ms Cullen’s claim was fundamentally dishonest and that the level of care she was claiming she needed was all a lie.  Dr Henniker-Major amended her case to plead fundamental dishonesty three weeks before the trial date. 

The trial was heard in front of His Honour Judge Ambrose over the course of nine days spread over a period from 1 March 2024 to 19 July 2024 – the original time estimate having been blown out of the water by the new fundamental dishonesty allegations.  

The prolonged insistence at trial that Ms Cullen was lying about the impact of the negligence on her was devastating. Three and a half days of persistent and, in the words of the Judge, ‘hostile, exhaustive and exhausting’ cross examination while using a voice valve to talk through a stoma in her neck was immensely distressing for Ms Cullen. Luckily, Ms Cullen is a feisty woman and stood up to this onslaught as well as anyone I can think of, but it still took its toll.  

In his judgment, HHJ Ambrose found Ms Cullen to be an honest Claimant and awarded her damages. He also found that Ms Cullen’s case was one where indemnity costs should be awarded. HHJ Ambrose concluded that the continued pursuit of the allegations by the defendant was out of the norm of usual proceedings when the basis upon which they had been made was found to have been wrong and that in doing so the Defendant’s conduct was unreasonable to a high degree, thus indemnity costs should be paid by the Defendant.  

I represented Ms Cullen with Leigh Day’s head of medical negligence Suzanne White and associate solicitor Camilla Browne. We were immensely pleased to secure this result for her, and proud to represent such a strong and tenacious individual – but her experience was still unnecessarily gruelling. The fact the Judge dismissed all the allegations of fundamental dishonesty and awarded indemnity costs against Dr Henniker-Major doesn’t make up for the distressing experience Ms Cullen went through.  

Hopefully, defendants will consider this judgment and become more cautious about alleging fundamental dishonesty going forward. 

Why are defendants alleging fundamental dishonesty more often?  

Defendants have had some well publicised victories, but maybe this has made them too complacent.  To fire a fundamental dishonesty bullet and miss is a costly error of judgement.  Not only should indemnity costs always surely follow, but it puts a huge emotional toll on the Claimant for whom imprisonment is a possible sanction. 

But what would be fair for claimants who are incorrectly accused of fundamental dishonesty?  Tomlinson LJ in Manna -v- Central Manchester University Hospitals NHS Foundation Trust used the phrase, “what is sauce for the goose should be sauce for the gander,” but what can the claimant’s sauce be?  Would an uplift of general damages be reasonable?  I am sure many claimants facing a defendant barrister for days in court calling them a liar would consider it pain and suffering. 

Should I be worried about this happening to me if I bring a claim?

It’s still uncommon for these types of allegations to be made, and most medical negligence cases still settle out of court. It’s our hope that judgments like Ms Cullen’s case will make defendants think twice before falsely accusing claimants of fundamental dishonesty. And of course, claimant solicitors will fight for clients and argue to the best of our ability on their behalf to secure the best outcome possible. 

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