Fundamental Dishonesty in Personal Injury Claims.

Personal injury claimants are people who have been injured as a result of another person’s (defendant) negligence and who are seeking compensation as a result.

In order to be successful the claimant must prove:

1. that a duty of care was owed by the defendant;
2. that the defendant has breached this owed duty; and
3. that the defendant’s breach of duty caused the injury / damage to the claimant.

If a claimant is able to prove these three aspects then they are likely to be successful in their claim. However, in recent years there has been a growing trend for defendants to raise allegations of ‘fundamental dishonesty’ in response to a claim.

This is a formal pleading that can be raised by the defendant in a civil claim which alleges that the claimant has been dishonest in the submission or progress of their claim. This allegation will then be decided upon by the Court, who will consider whether the claimant has intentionally been dishonest or misleading, and whether that dishonesty goes ‘to the root’ or a substantial part of the claim. The finding, as with all matters in civil litigation, is decided on the balance of probabilities, with dishonesty being judged according to the test set out by the Supreme Court in Ivey, involving both a subjective and objective test.

Fundamental dishonesty can be found in liability (i.e. who is at fault for the injury / damage) or quantum (i.e. the amount of compensation a person should receive) issues, or both. The Court’s power to make a finding of fundamental dishonesty is quite broad, including not only entirely fraudulent claims but also claims where a person has suffered a genuine injury but then deliberately and / or dishonestly exaggerated the injury’s consequences. Similarly, claimants who try to include financial losses which are not genuine can also be found to be fundamentally dishonest.

There are two separate procedures for fundamental dishonesty, which are referred to in both the Criminal Justice and Courts Act 2015 (“CJCA 2015”) and the Civil Procedure Rules (“CPR”):

• CJCA 2015, s 57 allows for an entire personal injury claim to be dismissed, including any genuine elements, on the basis that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim;
• CPR 44.16(1) provides an exception to Qualified One-Way Costs Shifting (or ‘QOCS’) protection by allowing costs orders to be enforced to their full extent in fundamental dishonesty cases. QOCS is a provision by which generally limiting a losing claimant’s liability to pay costs. The primary purpose of QOCS is to protect claimants from the financial burden of paying the defendant's costs if the claim is unsuccessful, thereby encouraging access to justice for individuals who might otherwise be deterred from bringing claims due to the risk of adverse costs orders.

In addition to the above, there is also the possibility of separate criminal proceedings or proceedings for contempt of court as a dishonest party.

It is therefore critical that you provide your solicitor with honest and accurate information in all times so that we are able to advise you appropriately. If you have any queries at all in relation to your claim then please contact us to discuss.