Apparently when it is exaggeration! This was the decision in Elgamal v Westminster City Council [2021] and it might be of interest to those studying tort.
The circumstances of this case presumably occur on rather a regular basis. The claimant was seriously injured while using gym equipment at a local authority centre. He claimed damages and liability was accepted, subject to a 35% contributory negligence deduction. So far so good. The defendants alleged however, that the claimant had exaggerated his symptoms to such an extent as to amount to fundamental dishonesty and that under s.57 Criminal Justice and Courts Act 2015 the case should be dismissed. There must be a temptation on all claimant’s to do precisely this. So what did the court say?
Here the first instance decision was upheld on appeal. As you might expect the court looked at Ivey v Genting for its definition of dishonesty. Remember that following this case it is necessary to look at the knowledge or belief of the individual against whom dishonesty is alleged. The test is subjective. If an individual believes the claims they make then those claims cannot be dishonest.
The trial judge had found that the claimant believed that his disability, following the accident, was greater than was actually the case, from his point of view he was telling the truth even though he had objectively exaggerated the injury. The appellate court did not consider that it needed to overturn the first instance decision on the claimant’s state of mind. The decision was not perverse.
The appeal court upheld the decision, there was no Ivey v Genting dishonesty and the exaggeration did not amount to fundamental dishonesty.