Howlett & Anor v Davies & Anor [2017] EWCA Civ 1696 (30 October 2017)

Howlett & Anor v Davies & Anor [2017] EWCA Civ 1696 (30 October 2017)

A trial judge may find a claim to be 'fundamentally dishonest' for the purposes of CPR 44.16(1) and disapply QOCS even if dishonesty is not explicitly pleaded, provided the defence sets out facts from which dishonesty may be inferred and the claimant has fair notice and opportunity to address the issue at trial. The District Judge's findings and the conduct of the trial satisfied these requirements.

Citation
[2017] EWCA Civ 1696
Parties
Appellant (1st Claimant): Lorna Howlett; Respondent (2nd Claimant): Justin Howlett; Respondent (1st Defendant): Penelope Davies; Respondent (2nd Defendant): Ageas Insurance Limited
Jurisdiction
England and Wales
Judgment Date
30 October 2017
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeal From County Court
Outcome
Appeal dismissed
Legal Topics
Qualified One Way Costs Shifting (qocs), Fundamental Dishonesty, Costs Orders, Pleading Requirements, Cross Examination, Fraud Allegations
Civil Procedure Personal Injury Qualified One Way Costs Shifting (qocs) Fundamental Dishonesty Costs Orders Pleading Requirements Cross Examination Fraud Allegations

Case Brief

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Parties

Lorna Howlett

Appellant (1st Claimant)

Justin Howlett

Respondent (2nd Claimant)

Penelope Davies

Respondent (1st Defendant)

Ageas Insurance Limited

Respondent (2nd Defendant)

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeal From County Court

Legal Issues

  1. 1 Whether a finding of 'fundamental dishonesty' under CPR 44.16(1) requires explicit pleading of dishonesty or fraud in the defence
  2. 2 Whether the claimants had fair notice and opportunity to address allegations of dishonesty at trial
  3. 3 Whether the trial judge was entitled to find the claim 'fundamentally dishonest' and disapply QOCS

Ratio Decidendi

A trial judge may find a claim to be 'fundamentally dishonest' for the purposes of CPR 44.16(1) and disapply QOCS even if dishonesty is not explicitly pleaded, provided the defence sets out facts from which dishonesty may be inferred and the claimant has fair notice and opportunity to address the issue at trial. The District Judge's findings and the conduct of the trial satisfied these requirements.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • The finding of fundamental dishonesty stands.