DISCRIMINATION CASES: QOCS, CLAUSE 56 AND FUNDAMENTAL DISHONESTY
Clause 56 of the Criminal Justice and Courts Bill, currently before Parliament, requires a court to dismiss the whole of a personal injury claim if any part of the claim is held, on the balance of probabilities, to be fundamentally dishonest.
Thus exaggeration of special damages may lead to judgment being overturned and the case dismissed.
Claims in the County Court/High Court involving discrimination in the provision of services etc. are caught.
Employment lawyers seem blissfully unaware that this clause potentially catches discrimination claims in employment tribunals, where there is any personal injury element and where there is a claim for injury to feelings, that is any discrimination claim.
So, exaggerate your client’s future loss of earnings claim and risk having the safest case dismissed in its entirety, or exaggerate the Vento band and lose all future loss of earnings.
It is beyond doubt that employment tribunals have a personal injury jurisdiction as well as an injury to feelings jurisdiction – see, for example, Vento v Chief Constable of West Yorkshire Police (No 2) [2002] IRLR 102, Court of Appeal.
The relevant part of Clause 56, which is not one of the “ping-pong” clauses of the Bill currently bouncing between the two Houses of Parliament, reads:
“56 Personal Injury Claims: Cases of Fundamental Dishonesty
(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.”
(2) The court must dismiss the primary claim, unless it is satisfied that the Claimant would suffer substantial injustice if the claim were dismissed.
(3) The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the Claimant has not been dishonest.”
On the face of it employment tribunal proceedings are capable of coming within section 56(1)… “proceedings on a claim for damages in respect of personal injury…”
If a tribunal finds fundamental dishonesty in relation to an unfair dismissal claim is that “a related claim” causing the discrimination claim to be lost?
Does fundamental dishonesty in relation to a discrimination claim cause the unfair dismissal claim to be dismissed?
Yes, appears to be the answer to both questions.
Personal Injury
Most discrimination claims do not include a personal injury claim separate from the injury to feelings claim. Are injury to feelings claims “personal injury” claims?
Personal injury is not defined in the Civil Procedure Rules dealing with Qualified One-Way Costs Shifting but CPR 2.3(1) provides that “a claim for personal injuries” means proceedings in which there is a claim for damages in respect of personal injuries to the claimant or any other person or in respect of a person’s death, and “personal injuries” includes any disease and any impairment of a person’s physical or mental condition.
Is injury to feelings a species of personal injury? Does it involve impairment of a person’s mental condition?
Shorter Oxford English Dictionary
Impairment
No definition given.
Impair
- Make less effective or weaker; devalue; damage, injure.
- Become less effective or weaker; deteriorate, suffer injury or loss.
Impaired
- One that has been impaired
- Of the driver of a vehicle or driving; adversely affected by alcohol or narcotics
Full Oxford English Dictionary
Impairment
The action of impairing, or fact of being impaired; deterioration, injurious lessening or weakening.
Impair
To make worse, less valuable, or weaker; to lessen injuriously; to damage, injure.
Impaired
Rendered worse; injured in amount, quality or value; deteriorated, weakened, damaged.
Roget’s Thesaurus gives the following alternatives for “impair”:-
Damage, harm, diminish, reduce, weaken, lessen, decrease, blunt, impede, hinder, spoil, disable, undermine, compromise, threaten.
Roget’s Thesaurus gives the following alternatives for “impaired”:-
Disabled, handicapped, incapacitated, debilitated, infirm, weak, weakened, enfeebled, paralysed, immobilised.
Roget’s Thesaurus gives the following alternatives for “impairment”:-
Disability, handicap, abnormality, defect, deficiency, flaw, affliction, disadvantage, problem.
Those definitions seem to me to be potentially wide enough to cause injury to feelings to amount to an impairment of a person’s mental condition and thus to bring injury to feelings into the sphere of QOCS protection.
Injury to feelings awards are usually in the Employment Tribunal. There costs do not follow the event and thus QOCS is of no application.
However injury to feelings awards are also made in the County Court where costs do follow the event; discrimination in relation to the provision of services is a County Court, not an Employment Tribunal matter.
My view is that the court could legitimately decide the issue of whether injury to feelings is a species of personal injury either way, although it is significant that the word “injury” is used.
Such awards certainly attract the 10% Simmons v Castle uplift, but as that applies to all general damages of all kinds that merely confirms that injury to feelings awards are indeed general damages awards; it does not necessarily follow that they are personal injury awards.
Employment Tribunals have the power to award damages for actual personal injuries arising out of the discrimination, including physical, but more typically, psychological injuries. These are generally awarded under the “injury to feelings” ahead of damages. The appellate courts have frequently said that there is no fine line between actual psychological injuries and injuries to feelings.
For example, in Birmingham City Council v Jaddoo UKEAT/0448/04/LA
the Employment Appeal Tribunal referred to “the inevitable overlap between injury to feelings and psychiatric damage…” (Paragraph 31).
In Vento v Chief Constable of West Yorkshire Police (No 2) [2002] IRLR 102 the Court of Appeal said that tribunals should have “…regard…to the overall magnitude of the sum total of the award for compensation for non-pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damages” such that “in particular, double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage.”
In HM Prison Service v Salmon [2001] IRLR 425 the Employment Appeal said that it is “necessary to stand back and consider the non-pecuniary award as a whole.”
On balance my view is that injury to feelings should be classed as a species of personal injury and that cases involving claims for injury to feelings should attract the protection of Qualified One Way Costs Shifting.
The issue is also important in relation to the Criminal Justice and Courts Bill; if such cases are claims for personal injury then fundamental dishonesty in relation to any part of the claim results in the whole claim being dismissed.
I deal elsewhere in this piece with that Bill but the definition of personal injury, currently contained in Clause 56(8), is
“”personal injury” includes any disease and any other impairment of a person’s physical or mental condition;”
This is exactly the definition in CPR 2.3(1) and therefore all of the matters dealt with above are relevant in considering whether the Bill applies to claims including an injury to feelings claim.
Qualified One Way Costs Shifting itself has no application to Employment Tribunal claims for the reasons set out above. However if injury to feelings claims are personal injury claims then the Draconian consequences of the Bill apply to all discrimination claims in Employment Tribunals, that is any fundamental dishonesty and the whole claim is lost.
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