Exaggeration and CPR 44.2(5)(d) | I’ve Told You A Million Times

Morrow v Shrewsbury Rugby Union Football Club Ltd

Having made findings at trial that the claimant had exaggerated his personal injury claim, specifically in respect of loss of earnings, Mrs Justice Farby had to determine if, and to what extent, this should be reflected in the award of costs.

The claimant had been awarded damages at trial in the sum of £285,658.08, including £58,000 in general damages.

Having beaten the defendant’s only offer of £110,000 the claimant was awarded his costs.

However, the defendant argued that a reduction should be applied to reflect the claimant’s deliberate exaggeration of his claim, which he had pleaded at in excess of £1m.

The claimant’s only offer, made shortly before trial, had been for £800,000.

The judge found that in the absence of dishonesty (of which there were no allegations or findings), the claimant’s exaggeration was not the sort of egregious misconduct that in itself deserved a punitive costs order.

She also took account of the fact that the defendant had the ability to protect itself with a Part 36 offer that took account of the exaggeration and reflected the true value of the claim, as well as the manner in which it had vigorously defended the claim.

“…the defendant denied that the accident caused the claimant to be unfit to work. The defendant lost on that issue. Its legal argument on causation failed. Its reliance on the February 2016 email as demonstrating that the claimant would have given up work was misplaced. The defendant chose to contest almost every allegation and almost every issue relating to quantum. The breadth of the defendant’s denials meant that the claimant would have needed to come to court to recover the damages which flow from my judgment.”

However, she was of the firm view that this was not a case where the claimant had simply given an “inaccurate picture” in a witness statement or in oral evidence.

“Exaggeration and an inflated claim for damages was built into the structure of the claimant’s presentation of his claim, both before and at trial… the claimant’s exaggeration operated across multiple and cumulative witnesses … and across multiple days in court. I give considerable weight to exaggeration (under CPR[44].2(5)(d)) in a case where it was engrained. I give some weight to the fact that the claimant’s Part 36 offer was multiple times higher than the award of damages (CPR[44].2(4)(c)). These factors lead me to the conclusion that the claimant’s conduct was a cause of unnecessary expense. Taking an overall view of the justice of the matter, the balance lies in favour of reducing the award of costs.”

Weighing up all of the competing factors the judge determined that the claimant should receive 85% of his costs.

“The claimant’s exaggeration prolonged the trial and prolonged the cross-examination of multiple witnesses, including the psychological and psychiatric witnesses as well as those who gave evidence relating to the quantification of loss of earnings. Such prolongation is indicative of how the claimant’s conduct caused unnecessary costs. In my judgment, a deduction of 15% is broadly appropriate to mark the additional costs caused by the claimant’s exaggerated case. A higher deduction would in my judgment begin to make inroads into areas in which both the claimant and the defendant overstated their respective cases.”

MORROW V SHREWSBURY RUGBY UNION FOOTBALL CLUB LTD [2020] EWHC 999 (QB)