An interesting decision from the High Court saw David Pittaway KC (sitting as a Deputy High Court Judge) order the Defendant to pay a proportion of the Claimant's costs pertaining to a failed Fundamental Dishonesty allegation where the claim had otherwise failed.
In Hakmi v East & North Hertfordshire NHS Trust & Anor [2025] EWHC 2597 (KB) (13 October 2025), the Claimant was a distinguished Orthopaedic Surgeon who raised a claim for Clinical Negligence against the Defendant trust. Quantum was agreed at over £1m subject to liability.
The High Court ultimately concluded that there was not negligence and that thrombolysis would not ultimately have altered the Claimant's outcome.
In the course of the proceedings the Defendant had pleaded fundamental dishonesty. The High Court duly considered the same.
The case is a warning to Defendants who raise Fundamental Dishonesty and ultimately fail to prove the same. The court can and will order adverse costs relating to the Claimant having to defend this limb of the action.
Speed Read
The speed read can be summarised as follows:
1. To make a finding of Fundamental Dishonesty there are five requirements; "(i) the section 57 defence should be pleaded; (ii) the burden of proof lies on the Defendant to the civil standard; (iii) a finding of dishonesty by the Claimant is necessary; (iv) as to the subject matter of the dishonesty, to be fundamental it must relate to a matter fundamental in the claim. Dishonesty relating to a matter incidental or collateral to the claim is not sufficient; (v) as to the effect of the dishonesty, to be fundamental it must have a substantial effect on the presentation of the claim."
2. The Claimant had put the Defendant on notice that if Fundamental Dishonesty was pursued to trial and ultimately failed that there would be an application for costs. Here the Defendant maintained the allegations of Fundamental Dishonesty until the conclusion of the case. The Defendant could have dropped Fundamental Dishonesty allegations during or at the conclusion of Trial but did not do so.
3. It was rejected that making an order reflecting the failure to establish Fundamental Dishonesty would undermine the costs regime. The High Court's view was that not addressing it could give "a defendant free tilt at raising the issue of fundamental dishonesty".
4. The court can and here did make an order for costs that reflected the Defendant's failure to establish Fundamental Dishonesty. The court accepted that a finding would have been disastrous for the Claimant's reputation and career (as a distinguished Orthopaedic surgeon).
5. The order for costs in the Claimant's favour was made as a percentage of the costs from the time that Fundamental Dishonesty was raised in the Defendant's Counter-Schedule of Loss. An order that the Defendant pays 15% of the Claimant's costs from the date of the FD allegation on the basis that some costs would have been incurred in any event.
6. The order for costs was made on the standard basis with the Claimant to pay the Defendant's costs of the action, though not to be enforced without the leave of the court (QOCs applying). Where proceedings are issued before 6 April 2023 the old QOCs regime applies so the Defendant would not be able to set-off its own costs against the Claimant's costs.
The Test for Fundamental Dishonesty
The High Court considered the test and approach to Fundamental Dishonesty:
"122. Mr de Bono referred me to the decision of Ritchie J in Cojanu v Essex Partnership University NHS Trust [2022] 4 WLR 33, where at paragraph 38, he sets out section 57(2) of Criminal Justice and Courts Act ("CJCA") 2015. The section provides inter alia:
(1) This section applies where, in proceedings on a claim for damages in respect of personal injury ("the primary claim")—
(a) the court finds that the Claimant is entitled to damages in respect of the claim, but
(b) on an application by the Defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the Claimant has been fundamentally dishonest in relation to the primary claim or a related claim.
123. At paragraph 47 of his judgment, Ritchie J set out the five requirements which must be satisfied before a finding of fundamental dishonesty could be made out, namely (i) the section 57 defence should be pleaded; (ii) the burden of proof lies on the Defendant to the civil standard; (iii) a finding of dishonesty by the Claimant is necessary; (iv) as to the subject matter of the dishonesty, to be fundamental it must relate to a matter fundamental in the claim. Dishonesty relating to a matter incidental or collateral to the claim is not sufficient; (v) as to the effect of the dishonesty, to be fundamental it must have a substantial effect on the presentation of the claim. Mr de Bono also referred me the review by the Supreme Court of the law on dishonesty in Ivey v Genting Casinos [2017] UKSC 67, Lord Hughes JSC at paragraph 62, which I have not set out in this judgment. As Mr de Bono accepts, the question in this case, which determines whether the defence is made out, is whether Mr Hakmi has deliberately exaggerated either his physical or cognitive limitations.
124. Mr de Bono accepts that the evidence for exaggeration of Mr Hakmi's physical symptoms is limited and impressionistic. It relies primarily on Dr Santullo's evidence that he was not trying as hard as he could, in particular that he was exaggerating the weakness on his right-hand side and balance. I observe that Dr Santullo had seen Dr Bach's report when she prepared her own report. It is not possible to say the extent to which that influenced her thinking.
125. The focus of Mr de Bono's submission relate to the neuropsychological testing by Dr Bach of an apparent lack of effort being relevant to the physical tests. He relies on the different results obtained by Dr Baldwin in the TOMM assessment, and the Digit Span sub-test, and Dr Hassan in the Montreal Cognitive Assessment (MOCA). He submits that the variation in test scores is highly suspicious and point to a non-organic cause. He submits that, if his performance was deliberate and self-serving, then he was dishonest and the test in section 57 of the CJCA is made out.
126. Having considered the totality of the evidence, I have concluded that the claim that Mr Hakmi has been fundamentally dishonest fails. I do not consider that the defendants have established to the civil standard that Mr Hakmi was dishonest whilst being examined by the defendants' experts. I have had the advantage of observing Mr Hakmi being cross-examined for a full day. Whilst I saw that he had difficulty in answering questions, without arguing his case, I do not consider that he was trying to mislead the court in any way. He is a proud man against whom a serious allegation has been made which, if found proven, could have serious consequences on his registration and employment by his Trust.
127. Having carefully considered the evidence of Dr Ford and Dr Bach, I prefer the evidence of Dr Ford. I accept her evidence that the TOMM assessment, on which a large part of this aspect of the claim depends, is not suitable for all stroke patients, certainly not Mr Hakmi. I am satisfied that the poor performance in Dr Bach's tests, and to a lesser extent in Dr Ford's tests, can be explained by Mr Hakmi's psychological condition at the time the assessments were made. In March and April 2022 he was exhausted following serious familial issues which were explored in evidence. I accept the particular circumstances of Dr Bach's first examination probably explain the disparity in the results obtained by Dr Ford. There may also be an element of practice effect between the respective examinations. Mr Kellar also drew attention Dr Bach's transposition of a table in her report, which undermines her opinion on disparity, and also Dr Hassan's mischaracterisation of Mr Hakmi's disability in the MCA assessment. I have taken both those matters into account in reaching my conclusions.
128. I do not consider that Mr Hakmi was performing badly on the tests with Dr Bach to exaggerate deliberately the extent of his impairment. I observe that there is a recognition by Dr Baldwin and Dr Hassan that Mr Hakmi's disability may be organic as well as psychological. I consider that organic damage did not assist him in completing the assessments. If Mr Hakmi had deliberately been underperforming, it would run contrary to all that he has done to rehabilitate himself following his stroke. He has also adduced statements and letters from four colleagues at the hospital which attest to his honesty and integrity, as well as the steps that he has put in place to mitigate his disability following his stroke.
129. I find that Mr Hakmi honestly believes that the diagnosis and treatment he received was suboptimal and that if he had been treated with thrombolysis, then, he would have made a full or nearly full recovery. The loss of his career and the consequent fall out on other aspects of his life manifested itself in his evidence.
130. For the reasons set out above, however, I have concluded that the claim is dismissed."
Should there be adverse costs against the Defendant?
The High Court next considered the question of what order to make, having found that the Claimant was not fundamentally dishonest:
"132. I have carefully considered the correspondence between the parties before the trial which has been provided. I do not consider it is necessary for me to set out it in detail in this judgment. It provides context for the period in the lead up to the trial, including Mr Hakmi's solicitors putting the defendants on notice that, in the event that the issue of fundamental dishonesty failed, there would be an application for costs, and the defendants making two "drop hands" offers shortly before trial. In any event, the trial went ahead and the defendants pursued the issue of fundamental dishonesty until the end. I raised the issue with Mr de Bono during his submissions, who assured me that careful consideration had been given to making and maintaining the allegation right through to submissions.
133. The conclusion that I have reached is that, notwithstanding that the defendants will not be able to enforce an order for costs on the claim, I should make an order that reflects that the defendants failed to establish fundamental dishonesty on the part of Mr Hakmi. I do not accept that to make such an order, where a claimant fails, undermines the costs regime. If anything it is the converse, not to make such an order would give a defendant a free tilt at raising the issue of fundamental dishonesty. The evidence in this case was properly explored at the trial and found increasingly wanting. It would have been open to Mr de Bono to have abandoned the issue after the close of evidence, or indeed earlier, but he did not do so.
134. It seems to me that I should make an order for costs that reflects that the defendants failed to establish fundamental dishonesty. As Mr Kellar has pointed out there was unfavourable national press coverage on the first day of trial and the consequences for Mr Hakmi, as I have said above, if the allegation had been found proved, would have been disastrous for his reputation and career. In my view, the order I make should reflect a percentage of the costs from the time that the issue was raised in the defendants' counter-schedule, which is dated 18 March 2025. I consider that Mr Kellar's submission that it should be 25% is too high, and accept in part Mr de Bono's submission that some of the costs would have been incurred in any event.
135. I order that the defendants pay 15% of Mr Hakmi's costs from 18 March 2025, subject to a detailed assessment on the standard basis in default of agreement. Otherwise I order that Mr Hakmi pay the defendants' costs of the action not to be enforced without the leave of the court."
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