Andrew Ward secures the dismissal of a £2.9 million personal injury claim at trial

October 26, 2022

Andrew Ward represented the Defendant in Brian Muyepa -v- Ministry of Defence [2022] EWHC 2648 (KB). Following a 12-day trial involving oral evidence from 29 lay witnesses and 10 experts, Mr. Justice Cotter dismissed the Claimant’s claim for damages of £2.9 million for Non-Freezing Cold Injuries sustained during his Army service on the ground of Fundamental Dishonesty pursuant to Section 57 of the Criminal Justice and Courts Act 2015.

The judgment can be accessed here: https://www.bailii.org/ew/cases/EWHC/KB/2022/2648.html

There was an irreconcilable difference between the Claimant’s high level of mobility as shown on videos of him walking normally at a wedding in June 2019 and dancing at a barbecue in August 2019 compared to his presentation to the medical experts with a stick. The Claimant had no medical need to use a stick. It was a prop designed to fool the experts.

Accordingly, the Claimant forfeited the entirety of his claim, including any element in respect of which he had not been dishonest. The loss of his claim did not amount to “substantial injustice” within the meaning of Section 57.

Absent Fundamental Dishonesty, the judge would only have awarded damages of £97,595.33 relating to NFCI sustained on an Army exercise in February 2016. The judgment criticises the Claimant’s NFCI, Pain Management, Psychiatry, Care and Employment experts for being at times partisan.

Four practical implications arise:

1. The case provides a salient reminder of the devastating impact that surveillance and social media evidence can have upon a Claimant’s credibility, particularly if discrepancies arise between the Claimant’s behaviour in his own environment compared to his presentation for financial gain to experts and in his witness evidence;
2. The judgment reminds medical and non-medical experts of their CPR Part 35 duties. The Claimant’s experts failed in Muyepa to make reasonable and necessary concessions following the disclosure of surveillance and social media evidence. Further, the judgment criticises the Claimant’s employment expert for resolving a factual conflict of evidence (and doing so in favour of the Claimant, thereby appearing partisan) when the assessment of witness evidence is for the judge;
3. The judgment contains helpful guidance as to the proper role of Care / OT Expert Evidence in high-value personal injury, and catastrophic injury, claims. Recommendations for care and equipment should be reasonably required; the cost should not be disproportionate to the benefit; and the aim of a Care / OT report should not be to maximise damages for the Claimant but to make recommendations after balanced and objective application of the correct principles; and
4. The judgment provides a helpful analysis of heads of loss seen in military claims (e.g.: Army benefits). In particular, this is the first judicial assessment of general damages for PSLA under the new Chapter 8(C) of the Judicial College Guidelines dealing with cold injuries.

Andrew was instructed by Carrie Hoey, Partner, and Liam Walsh, Solicitor, of Keoghs LLP. Andrew said:

“It was a privilege to work as a team with Carrie and Liam throughout the lifespan of this case. This result is due to the diligence and perseverance of Carrie and Liam in following up all of the evidential leads in the case.”

Andrew is a member of the personal injury team at Exchange Chambers.