It is becoming increasingly common for a defendant to plead fundamental dishonesty against a claimant. A claimant as part of his or her case may think a small white lie may not lead to any grave consequences however it would be very unwise for a claimant to take this approach to their case.
Section 57 of the Criminal Justice and Courts Act was introduced on 13 April 2015 into civil law, specifically in relation to personal injury proceedings.
This statute states that where a claim is found to be fundamentally dishonest in any way whatsoever the court must dismiss the whole claim even if there is some genuine element, unless to do so would cause substantial injustice.
Civil Procedure Rules (CPR) 44.16(1) states that:
“Orders for costs made against the claimant may be enforced to the full extent of such orders with the permission of the court where the claim is found on the balance of probabilities to be fundamentally dishonest.”
The potential consequences of being found fundamentally dishonest are extremely serious. An unsuccessful claimant can lose QOCS (Qualified one way costs shifting) protection and be at risk of having to pay the defendant’s costs. A successful claimant is at risk of having the claim dismissed under section 57 Criminal Justice and Courts Act 2015. The claimant is, whether successful or unsuccessful, also at risk of proceedings for contempt of court and, possibly, criminal proceedings.
A claimant may also be a liable for costs incurred by their solicitor, on the basis the claimant will have breached the terms of any conditional fee agreement. If a claim is dismissed, because of fundamental dishonesty, it is likely, the Court will order the claimant to pay the defendant’s wasted costs which can be thousands of pounds.
Definitions of fundamental dishonesty
The CPR does not, however, provide any definition or explanation as to what may amount to fundamental dishonesty and accordingly it has been left to the Courts to determine this for themselves.
The following situations are examples where a Court may find a claimant to be fundamentally dishonest: –
- A claimant exaggerating the nature of their injuries, for example stating they require the use of a walking aid following the accident however covert surveillance reveals they can walk with ease;
- A claimant who claims to have been involved in a road traffic accident however was not actually present in the vehicle at the time of the accident (a “phantom passenger”);
- A claimant who states they require a significant amount of care and assistance from family and friends but in reality, is able to manage all activities of daily living themselves and is discovered to be going for daily jogs in their local park;
- A claimant who states their personal items such as an expensive mobile smartphone (iPhone) was damaged due to the accident when in fact they owned a Nokia 3310;
- A claimant who puts forward an invented witness to support their claim where liability is in dispute.
The above examples only cover a minute range of potential scenarios where a defendant may plead the thorny defence of fundamental dishonesty.
The whole truth every time
A claimant must not be tempted by the opportunity a personal injury claim may present as a money making opportunity that they are simply not entitled to recover.