Fundamental Dishonesty Allegation Dismissed – but with cost consequences.

Background

Mr Mohamed Hakmi, a consultant orthopaedic surgeon at the Lister Hospital, brought a clinical negligence claim against the defendant NHS Trust.

His case arose from a stroke he suffered on 16 November 2016, following a prior stroke seven weeks earlier. He alleged that the decision not to offer thrombolysis treatment on the second occasion was negligent and had caused him significant disability. Liability was contested, though quantum was agreed at just over £1 million, subject to liability.

The Fundamental Dishonesty Allegation

The Defendants pleaded a case of fundamental dishonesty under section 57 of the Criminal Justice and Courts Act 2015, set out in the Counter-Schedule for the first time.

The allegation arose from neuropsychological testing conducted by a Dr Bach in 2024, who concluded that Mr Hakmi had failed effort tests (including the Test of Memory and Malingering - TOMM) and had deliberately underperformed, rendering his results unreliable. This was said to demonstrate that he had exaggerated his cognitive and physical limitations.The Defendants’ other medical experts provided some support for that view.

The issue was, therefore, whether Mr Hakmi had intentionally exaggerated his condition to advance his damages claim.

The Judge's Finding

David Pittaway KC (sitting as a Deputy High Court Judge) rejected the allegation. He held that the Defendants had failed to prove dishonesty to the civil standard.

The Judge preferred the evidence of Dr Ford, a neuropsychologist called for the claimant, who explained that the TOMM assessment is not suitable for stroke patients, and that low scores could be explained by organic and psychological factors.

Mr Hakmi’s performance in Dr Bach’s tests, and the variation with other results, was more likely due to exhaustion and psychological stress at the time of testing than to any deliberate malingering.

The court observed that Mr Hakmi was a ‘proud man’ who had done all he could to rehabilitate himself after his stroke, supported by colleagues’ evidence to his honesty and integrity.

The Judge found no attempt by Mr Hakmi to mislead the court and noted that exaggeration of his physical symptoms was not established beyond what was called ‘limited and impressionistic’ evidence.

Accordingly, the allegation of fundamental dishonesty failed.

However, the claim was itself dismissed on liability grounds. The court found that thrombolysis would probably not have altered the outcome for Mr Hakmi.

The Costs Consequences

Despite the dismissal of the main claim, the Judge made an order reflecting the Defendants’ failure to prove fundamental dishonesty.

Both parties accepted that, absent the dishonesty issue, costs should follow the event (i.e. claimant to pay defendants’ costs, not to be enforced without leave due to qualified one-way costs shifting).

However, the court held that defendants who unsuccessfully pursue an allegation of fundamental dishonesty should not have a ‘free tilt’ at such allegations.

The Judge concluded that the Defendants’ persistence in the allegation (including up to, and including, submissions) justified a resulting costs order.

He ordered the Defendants to pay 15% of the Claimant’s costs from 18 March 2025, being the date when the dishonesty issue was raised in the Counter-Schedule.