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Exaggerate and risk indemnity costs

In Desai vs North Essex Partnership NHS Foundation Trust [8MA25049; Judgment 19th April 2011, trial 14th February 2011; HHJ Knight QC; Central London County Court) the Court found that exaggeration of a claim could leave a claimant open to an award of indemnity costs against her.

Mrs Desai had an incident at work on 28th December 2005 in an NHS psychiatric ward.  The unit cared for many patients with premature dementing illness and similar. Mr AK had Huntington's Chorea that caused premature demnetia and physical choreiform movements (writhing and sharp sudden movements).

She alleged that she was thrown by AK some 6 feet onto the side of a chair in the TV room, landing on the side of a chair with her head on top of the armrest and her shoulder underneath the armrest in the gap so that her neck was stretched. She alleged she suffered neck and back pain.

She had told the same story of events to her orthopaedic and other medical expert consistently in reports from 2007 to 2010.

Mrs Desai was subsequently retired from her work as a healthcare assistant on medical grounds because of her alleged pains flowing from the above version of the incident. In proceedings she made many allegations of breach of duty including insufficient staff and training.

It is of note that she had made no complaint of any pain from the immediate aftermath of the incident (when she was ask if she wanted to go to A&E but declined) until March 2006, shortly before or about the time she had consulted solicitors (some 3 to 4 months after the incident).

The Court heard evidence from Mrs Desai, a fellow HCA and senior nurses and a manager on the ward. Mrs Desai accepted that it was impossible for her to have been thrown in the TV room as alleged. The Court found that the "overall impression of the Claimant's evidence was that in significant instances it was unreliable" and so it "was bound to treat it with some causation". Further the Court found in any event that there was no causation between many of the alleged breaches and her alleged injuries.

The Court found against her as to the facts at trial and found that she had exaggerated the incident in the TV room.

Prior to trial the Defendant made Mrs Desai an offer on 27th January 2011 to discontinue the claim bearing her own costs and paying a contribution of £25,000 towards its costs, because "the Trust is able to robustly defend all her allegations in respect of liability and causation". The Trust explained that "should you reject this offer, we intend to proceed to trial and reserve the right to bring this letter to the attention of the trial judge in relation to costs".

A further offer was made prior to trial that she discontinues the claim by 11th February 2011 and pay the costs, but this time all of the Defendant's costs rather than just a contribution of £25,000.

Once judgment was handed down, the Defendant made an application for costs on a stadard basis to 11th February 2011 and indemnity costs thereafter.

A Criminal Injuries Compensation Authority claim had also been raised by Mrs Desai. It was apparent from the disclosure in the claim against the Trust that a claim to the CICA had been made. The Defendant asked about this CICA cliam but received no details about it. It was not until trial that it was disclosed that she had been awarded £72,720 by the CICA in December 2010.

At the hearing on the Defendant's application for indemnity costs it became apparent that she has received an interim award by the CICA of £4000 prior to December 2010 and the balance (£68,720) at that time. It was not clear if the CICA was informed on the ongoing civil claim but it appeared that she had presented the same orthopaedic evidence to the CICA. 

HHJ Knight decided that this was an exceptional case where Mrs Desai had exagerrated. Further she had not disclosed the CICA award. The CICA might yet review this matter. HHJ Knight awarded indemnity costs from 11th February 2011.

Accordingly, if a person is to exaggerate the facts and injuries allegedly of and flowing from an incident in medical reports and witness statment(s), and is then disbelieved, do not expect to escape the possible award of indemnity costs.

David Thomson 


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