QB-2018-004997 - [2025] EWHC 2301 (KB)

The Defendant relies on a number of aspects of the evidence in support of its contention that the Claimant has been fundamentally dishonest. I have not addressed all of them in this judgment. I have focused on the four areas I consider important. In its skeleton argument for trial the Defendant’s submissions on fundamental dishonesty were focused on the surveillance evidence (in particular the March 2022 surveillance) on how the Claimant’s presentation on video was different from her accounts of her disability elsewhere. The video evidence is my first area. Over the course of the trial other evidence relevant to fundamental dishonesty became significant. That evidence can usefully be grouped under three further headings – (2) evidence in relation to the Claimant’s responsibility for horses, (3) evidence relating to the Claimant’s car, (4) other material inconsistencies.

It is necessary before beginning to discuss the evidence to record the fact that the Claimant gave evidence on two occasions. The main part of her evidence was given on the first two days of the trial (Tuesday 8^th July and Wednesday 9^th July). However, she returned to the witness box on Monday 14^th July. This happened because whilst she was giving her evidence for the first time the Defendant came into possession of further evidence, screenshots of Facebook messages between the Claimant and her mother from the summer of 2022. The evidence was particularly relevant to the issue of the vehicle adaptations but also touched on the question of the Claimant’s employment and her overall disability. I drew the attention of both parties to the observations of the Court of Appeal in Ras al Khaimah Investment Authority v Farhad Azima [2021] EWCA Civ 349. Consistent with the pragmatic approach that characterised counsel for both parties, Mr Lewers accepted that the evidence would be admitted but sought further time to respond to it. He was given that time and, in the end, the Claimant provided a further statement on 12^th July to which the Defendant’s solicitor, Ms Kirstie Mallaney, responded with a statement of her own on 13^th July.

The Claimant attributed her capacity to assist as seen on the surveillance, in part at any rate, to the beneficial effects of her spinal cord stimulator and the use of a strong pain-killer, gabapentin. She was taken to a number of reports and entries in the records where she had described both treatments as ineffective. The Claimant was asked where she got her medication from in 2022. She said that she still had some from when she had been prescribed it six years before.

It was put to the Claimant that she had not told any expert that she could raise her arm for brief periods. She pointed out that she had never said that that was something she could not do. Her response when she was asked why she had not mentioned to them that she was capable of this level of activity even if exceptionally, was similar. She answered the specific questions she was asked and it did not come up.

In relation to the period of surveillance where her left arm was above her head, the Claimant stressed that that was only possible because she could hold on to something with her hand. She stressed that her left arm played a limited role in the manual handling and that she was materially assisted by her friend Shireen.

The Claimant accepted that the information she had given the experts was that she could hold nothing or light objects in her left hand. When it was put to her that she was holding a water container in the surveillance footage, she replied that it was a light, empty water container. She gave similar answers in relation to the other objects she was seen carrying in her left hand. The Claimant was asked why she had not included comment on the section where she used her left arm to pull a trolley in her August 2022 statement in response to the surveillance, which went into some detail in its analysis of the footage. She replied that she was unsure why that was not there.

It was put to the Claimant that she presented on the surveillance as not disabled at all. She denied that.

Ms Timmis gave evidence. Her evidence was largely supportive of that of the Claimant and she rejected the constructions of the surveillance evidence Mr Fetto suggested to her. She was clear that the Claimant had little use of her left arm. She was grateful for the Claimant’s support and understood the effort it cost her. She asked the Claimant to help because she did not have many ‘horsey’ friends to call on. She explained that she was not sufficiently confident in driving the horsebox because she had problems with her own back and shoulder at the time.

I also heard evidence about the Claimant’s disability and restrictions from her grandmother, Maureen O’Connell. She provided a great deal of assistance to her adult grand-daughter, such as putting toothpaste on her toothbrush, whether or not that assistance was needed or even sought. She had not seen the surveillance evidence before the hearing and found it difficult to comment meaningfully on the extracts to which she was taken. She did suggest that the fact that the Claimant had cut a carrot (something that Maureen O’Connell had said she could not do in her statement) could be explained by reference to the different height and texture of the surface which she was using. She was asked about her grand-daughter’s activities outside the home. She told the court that the Claimant did not share the minutiae of her life with her and so she did not for instance know how much she had looked after horses but she did recall them having an argument about it. She was sure that, if the Claimant was able to do more, she would not impose on her as much as she did.