A finding of fundamental dishonesty in a recent personal injury claim sends a serious warning to potential claimants about the impact of losing QOCS protection for exaggerating their claims value.
Claimant Richard Walkden lost the protection of QOCS (Qualified One-way Costs Shifting) after a High Court Judge upheld an earlier decision to apply the “fundamentally dishonest” criteria to his personal injury claim against Drayton Manor Park for an alleged life changing back injury.
Mr Walken 62, a former Managing Director of Eartheat Ltd an energy business in Leicestershire visited Drayton Manor Theme Park at Easter in 2014 with his family.
The original incident happened when one of the theme parks staff sent a cable car off far too fast, causing the car to swing wildly, and for Mr Walkden to suffer a back injury whilst trying to protect his young sons.
He issued a personal injury claim against Drayton Manor Theme Park for a serious back injury that caused him “considerable pain” and left him unable to bend his back, and ended his bee keeping hobby and career as a MD. His claim was issued for damages of £1.5m.
The defendants admitted liability for the injury but disputed the level of damaged claimed at £1.5m.
In March 2020 Judge Murdoch handed down the original judgment at Leicester County Court dismissing his claim as 'fundamentally dishonest'.
Judge Murdock found that although the claimant would likely have been entitled to £17,600 of damages for the back injury - he had exaggerated his injuries to such an extent that the whole claim was thrown out after reaching the fundamental dishonesty criteria of the post Jackson new rules.
The Judge had seen evidence from social media, including pictures of the claimant white water rafting in South Africa. Images showed Mr Walken fitted out in full helmet and buoyancy aid, and sat ready on the raft before it went through the rapids of the Crocodile River, near Pretoria, South Africa 8 months after the accident.
And whilst Mr Walkden claimed that he did not take part in much of the activities, only joining the raft and paddling in calmer waters, Judge Murdock did not accept that version of the events.
Judge Murdock said,
“I do not accept that he did not do the entire trip, he is kitted up to do it, his children are in the picture and yet none of them in their evidence says that he did not do the entire trip,' he said.
'If I were wrong with that analysis I would find that in any event he was still required to paddle even on flat water and that would have been a hard, physical activity”.
This interpretation of the events and the initial Courts finding of fundamental dishonesty in the personal injury claim was upheld by Judge Mrs Justice Tipples in the High Court where she said that Judge Murdock had been entitled to find that Mr Walkden's claim was dishonest as he had exaggerated his injuries.
The fundamental dishonesty decision now means that the claimant, Mr Walkden, must pay the defendant, Drayton Manor, their costs of defending the action, which is currently estimated at circa £200,000 up front, pending a full assessment of the costs.