One man’s fraudulent representation exposed
Val Pitt on why an anonymity order was thrown out in a recent legal case
In the recent case of Gordon Dunn v Menzies Distribution Limited, the Court considered an application to recall an anonymity order and to disapply QOCS (Qualified One Way Costs’ Shifting) against a claimant who had made fraudulent representations in advancing his claim.
Mr Dunn brought an action against his former employer for an alleged breach of personal data, under the General Data Protections Regulations, when he was informed of the loss of his personnel file, which he alleged contained details of his medical history and a past abusive relationship. Mr Dunn alleged he suffered significant stress at the possibility of colleagues becoming aware of the content of the file which had caused a deterioration of his mental health, lowered his mood and heightened his anxiety. At the outset, on Mr Dunn’s application, the court anonymised the action to “mitigate the risk of further psychological injury.”
Medical evidence was produced by both parties in which Mr Dunn advised he had lost interest in pleasurable activities, struggled with insomnia and nightmares and had suffered a deterioration of memory and concentration. He described his struggle with panic attacks and going into crowds.
He also described a previous allegedly abusive relationship and said he had not been in a relationship since. He advised he used to run marathons but hardly ran now and did not want to go out, doing “absolutely nothing” during the day other than walk his dog, and said his parents had moved in with him as they were worried about his mental health.
However, surveillance and social media evidence obtained by the defenders showed Mr Dunn was in a relationship and living with a new partner and son. He had been on holiday on several occasions since the alleged data breach, visiting busy destinations including Paris, where he visited Disneyland Paris, the Louvre, the Eiffel Tower and the Arc de Triomphe. The evidence showed Mr Dunn had continued to work. Further, online news reports confirmed Mr Dunn’s ex-partner had been found not guilty of assaulting him and disclosed he had been convicted of acting in a threatening and abusive manner towards her.
When the surveillance evidence was disclosed, Mr Dunn’s agents reportedly spoke with the defenders’ agents and confirmed Mr Dunn had admitted he had deliberately lied. His solicitors withdrew from acting on his behalf. Mr Dunn wrote to the court seeking to abandon his action.
At that stage, the defenders applied to remove the anonymity order and to award costs of the action against Mr Dunn, arguing the Court should find that he had made fraudulent representations.
In most circumstances, the Scottish courts will require to hear evidence, before adjudicating these types of issues. For example, a medical report or surveillance footage will not be considered by the court, unless agreed or spoken to in evidence by the author/creator. In this case, the court concluded it could rely upon the surveillance evidence on the basis that the pursuer’s agents reported that it had been put to the pursuer, who confirmed it was true.
The Court considered that the abandonment of the action alone permitted an award of costs against Mr Dunn. In addition, on balance of probabilities, Mr Dunn had made a series of fraudulent representations without belief in their truth which were a “straight lie” and entitled the Court to disapply QOCS.
Finally, the Court recalled the anonymity order and found an application of this type founded on a fraudulent representation was an abuse of process.
Val Pitt is a Partner, Horwich Farrelly