Coker v Ministry of Defence

Head of Personal Injury, Andrew McLaughlin, has successfully defended the Ministry of Defence against a claim by a former soldier for approximately £750,000, arising out of a non-freezing cold injury (NFCI). Andrew was instructed by Ali Maghazachi from Keoghs. Liability was agreed at 75/25, but after a five-day trial—featuring vascular and employment experts on both sides—the court found that the claimant had been fundamentally dishonest in the presentation of his claim in all material respects.

The claimant alleged that the NFCI had left him with continuing disabling symptoms, resulting in medical discharge and a restricted ability to work. Although he did not plead a claim for care and assistance in his schedule of loss—limiting his claim to past and future loss of earnings and pension—his witness evidence laid the groundwork for such a claim.

HHJ Walden Smith found that he had intended to bring a care claim and lied in doing so, but ultimately refrained because surveillance footage was disclosed before the final schedule was due. The judge held that the claimant had sought to deceive medical experts during their examinations, and the surveillance footage demonstrated that his functional capacity was significantly better than he claimed. She further held that his account to the Medical Board exaggerated his symptoms and omitted a pre-existing cold-related condition, which, if disclosed at enlistment, would have led to his rejection from the Army.

The judge accepted the defendant’s vascular expert, Mr. Gaunt’s, evidence that the claimant had suffered only a mild NFCI and recovered within days or a few weeks. Surprisingly, however, she still assessed general damages at £25,000—the amount claimed by the claimant. He had already received £21,134 under the Armed Forces Compensation Scheme (AFCS).

Although the judge found the claimant fundamentally dishonest, she concluded that it would be unjust to dismiss the claim (without providing reasons). She then addressed the question of whether the 25% deduction for contributory fault should be applied before or after deducting the AFCS award. The two possible outcomes were:

• If deducted before the AFCS offset: £25,000 – 25% = £18,750; then £18,750 – £21,134 = £0 (i.e., no damages payable).

• If deducted after: (£25,000 – £21,134) × 75% = £2,907 payable.

The judge analysed the AFCS scheme and its underlying 2011 Order. She held that the AFCS award should not be taken into account when assessing damages, but rather deducted after damages had been assessed. Drawing a comparison to the CICA scheme, she concluded that allowing a deduction earlier in the calculation would wrongly benefit the tortfeasor rather than the claimant. This interpretation applies whether the defendant is the MoD or a third party.

Accordingly, the damages were reduced by 25% to £18,750. The AFCS award of £21,134 was then offset against this amount, resulting in a net recovery of zero. Effectively, the claim failed.

The claimant was ordered to pay the defendant’s costs on the indemnity basis, and Qualified One-Way Costs Shifting (QOCS) was disapplied. The judge clarified that the finding that it would be unjust to strike out the claim did not preclude indemnity costs or the disapplication of QOCS.

As a result, the defendant did not need to appeal either the arguably excessive award for general damages or the judge’s decision not to dismiss the claim despite the finding of fundamental dishonesty.

Download full judgment: Coker v Ministry of Defence

Andrew’s defendant-focused practice sees him being counsel of choice for the majority of national firms and their insurer clients especially in complex cases where fundamental dishonesty and fraud is alleged. His expert knowledge of counter-fraud litigation tactics is in high demand and Andrew is often asked to speak to claims handlers on how to spot the signs of fundamental dishonesty and claims inflation. Find out more here.