Fundamental Dishonesty in Personal Injury Claims

At the beginning of 2018, a High Court ruling provided much-needed guidance on fundamental dishonesty in personal injury claims.

This ruling has given personal injury lawyers and insurers clarification as to what amounts to fundamental dishonesty, the procedural obligations of alleging fundamental dishonesty, and the impact on QOCS protection.

If you want to know more about this, our Fundamental Dishonesty and QOCS course is for you.

Fundamental dishonesty and recent case law

The idea of ‘fundamental dishonesty’ was introduced by Lord Justice Jackson in 2013 as part of the civil litigation reforms. Since then, a handful of cases have had a significant bearing on the law.

Of particular note is the case of the London Organising Committee of the Olympic and Paralympic Games (In Liquidation) v Sinfield in 2018. In brief, Mr Sinfield was a volunteer at the London Olympic Games, during which he suffered a personal injury. The defendant admitted liability. The claimant said that he now needed to employ a gardener, which had not been previously required, and this made up a large part of his special damages claim. The defendant found this claim to be untrue, as the claimant had always employed a gardener.

The defendant pleased fundamental dishonesty, but at the first instance it was found that while parts of the gardening claim were dishonest, this did not contaminate the entire claim. The claimant was therefore awarded damages. This decision was appealed, and the judge overturned the original ruling, saying that the claimant had been fundamentally dishonest – meaning the entire claim should be dismissed.

This was of great import to the concept of fundamental dishonesty, as it clarified that the claimant’s actions must ‘substantially affect’ the presentation of the case for fundamental dishonesty to be upheld. This provides more certainty as to the meaning of fundamental dishonesty and its consequences.

Another landmark case was that of Howlett v Davies in 2017. In brief, the claimants Lorna Howlett and her son alleged that they were being driven by Penelope Davis when the vehicle collided with another stationary vehicle, Fundamental Dishonesty in Personal Injury Claimscausing them to suffer personal injury. The defendant became suspicious about the validity of their stories and at trial the District Judge dismissed the claim. The case went to the Court of Appeal, but the appeal was dismissed.
This case was extremely interesting, as the claimant applied to have the defence struck out on the basis that the defendant was ‘sitting on the fence’ – it was argued the defendant should either allege fraud or accept that the accident happened. This was dismissed by the court, meaning that it is not necessary to put forward an allegation of fraud, but simply to call into question the credibility of the evidence.

The impact on QOCS

One of the most serious implications of fundamental dishonesty is that Qualified One-Way Costs Shifting (QOCS) is set aside. In other words, the unsuccessful claimant will be liable to pay the defendant’s costs. As a personal injury lawyer acting for the claimant, this is a significant risk to be aware of.

Want to know more?

This is just a very brief overview of the latest developments in fundamental dishonesty and QOCS. All of this and more is discussed in greater detail in our Fundamental Dishonesty and QOCS course. After this half-day course, you will be able to –

This course can also be offered in-house.

Contact us now

To reserve your place on a course, or to find out more about MASS Training, simply call us on 0117 9259612 or complete our free online enquiry form and we will be in touch.

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