Hospital hit with costs penalty after wrongly alleging dishonesty

A hospital trust that wrongly accused a claimant of faking the extent of his injuries has been hit with a costs penalty – despite seeing off the overall claim.

The defendants in Hakmi v East & North Hertfordshire NHS Trust had alleged fundamental dishonesty against Mohamed Hakmi by accusing him of over-exaggerating the impairment effects of a stroke.

Hakmi, a surgeon, had brought a claim for clinical negligence, alleging that he was caused serious disability by the hospital’s decision not to offer thrombolysis treatment. The claim ultimately failed, with David Pittaway KC, sitting as a deputy High Court judge, ruling that such treatment would not have altered the outcome.

But the judge went on to order that the successful defendants pay 15% of Hakmi’s costs from the time that the issue of fundamental dishonesty was raised.

The judge said: ‘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 ruling is a rare example of a costs penalty for defendants that make unsubstantiated allegations of fundamental dishonesty. Since the defence was introduced in 2015 claimant lobby groups have consistently suggested that defendants were able to plead it without any repercussions, putting clients under extra pressure to settle.

Pittaway said the evidence in this case had been properly explored at the trial and found increasingly wanting, so it would have been open to the defendants to have abandoned the fundamental dishonesty issue earlier.

As a result of the dishonesty allegation, it was also noted, Hakmi received unfavourable press coverage on the first day of trial. Hakmi said he had been caused three months of ‘sleepless nights and weeping’ after it was alleged that he had self-sabotaged a cognitive test to ensure he scored lowly.

It was put to the claimant during cross-examination that he had deliberately failed to put the required effort into the neuro-psychological testing to produce results below his actual cognitive performance. Hakmi vehemently denied this and maintained in cross-examination that he had always been straightforward.

The judge rejected the allegation of fundamental dishonesty, finding that Hakmi did not deliberately perform badly in testing. Such an approach, he added, would run contrary to all Hakmi had done to rehabilitate himself and to statements and letters from four colleagues which attested to his honesty and integrity.