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	England and Wales High Court (King's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Debbie Deb-Nath v Ajit K Das [2022] EWHC 2353 (KB) (23 May 2022) URL: https://www.bailii.org/ew/cases/EWHC/KB/2022/2353.html Cite as: [2022] EWHC 2353 (KB)

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IN THE COUNTY COURT AT LEEDS
ON APPEAL FROM BRADFORD COUNTY COURT

		The Courthouse 1 Oxford Row Leeds LS1 3BG
		Monday, 23rd May 2022

MR JUSTICE LAVENDER:

1. This is a renewed application for permission to appeal against the decision of Recorder McNamara sitting at Bradford County Court on 21 May 2021. The case related to a personal injury claim arising out of a road traffic accident on 17 May 2013. Liability for the accident was not an issue. Nor was it an issue that the claimant suffered some injury, in the form of a whiplash-type injury to the neck, which would also cause some pain in the shoulders and would have continued for about 12 months. The claimant contended that she also sustained an injury to her left shoulder, in the form of an impingement syndrome leading to bursitis and a frozen shoulder.
2. The recorder found that that injury was not, in fact, sustained by the claimant until about November 2015. That finding is not challenged on this appeal. What the claimant seeks to challenge on this appeal are the recorder's findings that she was guilty of fundamental dishonesty in attributing the impingement syndrome to the road traffic accident and further that she was guilty of fundamental dishonesty in exaggerating her symptoms and in signing and relying on her third schedule of loss.
3. I dealt with this application on the papers and I set out extensive reasons in writing for refusing the application. I will not repeat what I said there. I continue to rely on it.
4. Today, the claimant has been represented by Ms Cummerson, who was not counsel at the trial. Ms Cummerson, in her written and oral submissions, has presented the claimant's case as attractively and persuasively as possible. I remain of the opinion that the appeal would have no real prospect of success. Ms Cummerson rightly accepted, by reference to authority, that, since this is a proposed appeal against findings of fact, any Court hearing the appeal would need to be satisfied either that the findings in question were unsupported by the evidence or that the decision subject to challenge was one that no reasonable Court could have made. It does not seem to me that, on any of the grounds of appeal, could that test, which Ms Cummerson accepts places a heavy burden on the claimant, arguably be met.
5. Since I have already set out written reasons, I do not purpose to say much about the grounds of appeal as they were further developed today. In relation to ground one, the principal submission was that the recorder either disregarded or gave insufficient weight to various documents which referred to the claimant suffering some pain in her neck and left shoulder in the period between the road traffic accident and November 2015. In fact, it seems to me that all of those documents were considered by the recorder. The matter of what weight to give to them was something for him and I do not see that his conclusion was one which no reasonable Court could have made.
6. A striking feature of this case is that the evidence before the recorder included a joint statement by the two consultant psychiatrists, Mr Bird and Dr El-Assra, in which they expressed the opinion that the claimant had exaggerated her symptoms. The recorder is criticised for relying on that, but that was evidence which was placed before him. Certainly, the view expressed by those experts was not an unreasonable one.
7. I do not propose to deal with all of the arguments which have been advanced before me today. Ground two concerned the issue of exaggeration and, in particular, the surveillance evidence. The specific criticism of the recorder there is that he relied in his judgment on the discrepancy between the way in which the claimant presented in the surveillance video and the way in which the claimant presented to her doctor, Mr Limb, when he examined her two years earlier. If that had been the only discrepancy relied on by the recorder, then there might be some force in this point. The recorder relied primarily on the discrepancy between the way in which the claimant appeared in the surveillance video and the way in which she presented herself to the defendant's expert, Dr Edwards, on the very same day. In the light of that, the recorder's use of the surveillance evidence is certainly one which a reasonable Court could make.
8. Finally, there is, in ground three, criticism of the recorder's finding that the claimant was fundamentally dishonest when she signed her third schedule of loss. The recorder noted that the claim for special damages in that schedule totalled just over £652,000, whereas in the fourth schedule, which was submitted at the start of the trial, her claim for both general and special damages amounted to only just over £272,000. The recorder considered the claimant's evidence as to why she had signed the third schedule and, as he was entitled to, he rejected that evidence. He is criticised for not having sought clarification from the claimant's solicitors, who would have been, says the claimant, in a position to confirm her statement that she first became aware of the misleading nature of the third schedule of loss in January 2020 and then told her solicitors and it was their fault that the fourth schedule was not produced until the morning of trial. It may be that the solicitors were in a position to provide that evidence, but they did not do so. It is for the parties, under our system, to decide what evidence to call. The recorder had no duty to seek evidence.
9. Finally, I add that criticism was made of the way in which the recorder dealt with the claimant's evidence. He set out at some length why he found her to be an unreliable witness. He referred, in particular, in paragraph 21 to the fact that she became emotional at times. It is submitted that he should have referred to the medical evidence that she suffered from depressive disorder in the past. However, it is clear from paragraph 21 of his judgment that he did not merely consider the fact that she became emotional, but he also considered why. In his judgment, there seemed to be a correlation between the onset or manifestation of emotions and the times when she was unable satisfactorily to provide an answer to the questions she was asked. This, in his judgment, matched his finding that there were occasions when she became loquacious, not as a result of nerves or discomfort, but in an effort to obfuscate and avoid giving a definitive answer to a question.
10. For all of these reasons, the application is dismissed.