Honesty Is The Best Policy – If You’re A Claimant
Those of us who have acted for injured people for a long time have, in the last 15 years in particular, become used to the Government, insurers and often both of them in tandem, attacking the very notion of claiming damages for injuries caused by another’s negligence. The attacks are financially-driven but have been sustained in painting Claimants as ‘trying it on’ and there has been a gnawing sense that they believe Claimants to be dishonest unless they can show otherwise.
The insurance industry has succeeded in creating a feeling of ‘shame’ in claiming, to the extent that the number of claims pursued has fallen year on year for the last few years (not that they want people to know that – it suits insurers for you to believe that there is a ‘compensation culture’).
There are of course dishonest Claimants. There always have been. Unfortunately, despite being a tiny number their actions have affected considerably the approach the law currently adopts to the question of honesty.
Until relatively recently, Defendant insurers who suspected a claimant was being dishonest in bringing a claim, had to specifically allege “fraud” and the test for establishing that was a fairly high bar. Nonetheless, it could of course result in those Claimants found to be fraudulent facing criminal proceedings. Such cases however tended to be confined to cases where the ‘accident’ was entirely fabricated or, in the case of road traffic claims, staged as part of a criminal conspiracy to obtain damages.
What is Fundamental Dishonesty?
In 2015 onwards, the Criminal Justice and Courts Act introduced the concept of “fundamental dishonesty” specifically to personal injury claims, and specifically to Claimants rather than Defendants.
This enables a Defendant (or more often their insurer) to argue that if a Claimant has been “fundamentally dishonest” in bringing the claim or part of their claim, the entire claim for damages can be struck out. Even where it has been accepted there had been an accident, and it was admitted that the defendant was liable, if the claimant was found to be dishonest about – for example – the amount of care and assistance that he needed at home after the accident, that could result in a finding of fundamental dishonesty if the Court decided that it went to the very root/heart of the claim and could decide to award the claimant absolutely nothing.
Consequences for Claimants
The Court has spent the last few years grappling with what is “fundamental”, and indeed what amounts to “dishonesty” but it can occasionally be a grey area. A Claimant may have a genuine belief in their right to bring a claim for certain losses and expenses, but the Court may find in that particular case that they were either not entitled to bring such a claim or have in some way inflated that claim. It has become worryingly common for Defendants, at the conclusion of such cases, to seek a finding of “fundamental dishonesty” from the Court despite their being a significant difference between a Claimant failing to prove their case on a balance of probabilities and such a Claimant being ‘dishonest’.
Similarly, Claimants seeking damages for ‘chronic pain’ – which is a condition largely (though not entirely) reliant on subjective reporting of symptoms by the Claimant, will routinely face allegations of exaggeration from Defendants/insurers.
Bearing in mind that the potential penalty for such a finding at Trial could ultimately result in a Contempt of Court finding, is it surprising that, faced with such an allegation – which is something the insurers can throw in to the pot with relatively no risk – can deter genuine, honest Claimants from pursuing their case to trial, bearing in mind the potential risk if something goes wrong and a Judge, for whatever reason, finds that they have been ‘dishonest’ even though they have a genuinely honest belief in their claim.
Does this deter Claimants from bringing claims?
This is of course only applicable to Claimants. This blog is not a defence of dishonest Claimants, but is an observation that the perhaps unintended consequence of the Act has been to deter honest Claimants from pursuing claims to trial when faced with the possibility, however remote, of a criminal conviction at the end of it. This would be less objectionable if the rules were the same for the Defendants but plainly they are not, and it is arguable that the 2015 Act puts the parties on an unequal footing.
Put bluntly, there are no sanctions for Defendants or their witnesses who ‘exaggerate’ or ‘bend the truth’ in Court even if such conduct would amount to the same ‘fundamental dishonesty’, even if the result of such unchecked dishonesty would be to deny the Claimant hundreds of thousands of pounds.
Recently the Courts have started to take a firmer line with Defendants causally waving the ‘dishonesty’ flag, who may opportunely seek a finding of fundamental dishonesty simply because the claimant has failed to win their case, but it is still a concern even for honest Claimants.
For those representing Claimants, the key, as it always has been, is to ensure that each and every aspect of the claim brought is credible and honest, and is checked and approved by the Claimant. I have represented a number of claimants where the Defendants have alleged fundamental dishonesty but have not yet had a finding against any of my clients. It is often simply being used as a tactic to deter honest claimants from bringing genuine claims, and one which we must continue to fight against.
If you’re in need of expert advice relating to personal injury claims please call our highly experienced Personal Injury team today on 0808 302 6007 to talk through your situation with us. Alternatively, you can request a call back online.