Fundamental Dishonesty in Personal Injury Claims

Submitted by Imran Salim on Wed, 03/14/2018 - 10:54
Fundamental Dishonesty in Personal Injury Claims

FUNDAMENTAL DISHONESTY

When you have an accident and suffer loss, the law says that you should be put in the same position as if the accident never happened. So, say you lost income you will be compensated for the precise amount of the loss. Injuries are given a financial value and once more you receive money for the injuries suffered in the accident. But, what if you try to profit or gain from an accident. Can you do this? Well, unfortunately not. Moreover, the implications of putting forward a claim that is not honest and genuine are very serious indeed.

The Court rules are that if you bring an unsuccessful claim, then a losing claimant has no liability for costs except in limited circumstances (This is called qualified one-way costs shifting or QOCS). One of those limited circumstances where this does not apply is where the claim is found on the balance of probabilities to be fundamentally dishonest. In the case of Gosling v Screwfix, the court dealt with fundamental dishonesty. It found that an accident had occurred, but that half of the amount claimed was exaggerated. The claimant had significantly exaggerated his symptoms. The dishonesty went to a significant element of the claim, namely, quantum. That made the claim fundamentally dishonest. Costs were ordered against the claimant. So, although the Claimant had a genuine accident and was awarded some money because they were dishonest they had to pay the opponents legal costs and were therefore worse off than if they had never made a claim.

Moreover, a Defendant can ask the Court to strike out (dismiss) the whole case on the basis of fundamental dishonesty. However, this only applies where the claimant has an entitlement to damages. If liability has not been admitted or the claim fails on liability, the defendant cannot seek such an order.  Further, the claimant must be found to have been fundamentally dishonest in relation to the primary claim or a related claim.

The court does not have to dismiss the claim where it finds that dismissal would result in substantial injustice to the claimant. This likely means if the dishonesty is minor in nature.

In terms of procedure, the court must record what award of damages it would have made. That sum is then deducted from the court order made in favour of the defendant and the balance is what the court will order by way of costs in the defendant’s favour. 

The concept of fundamental dishonesty relates to personal injury claims only and applies to the conduct of claimants only. The dishonesty must be “fundamental” ie go to the root of the claim or a substantial part of the claim. Another description might be that the claim was one which depended as to a substantial or important part of itself upon dishonesty.

There are a number of consequences should a court make a finding of fundamental dishonesty against a claimant, one of which is that an otherwise valid claim may be dismissed because of the dishonesty.

If the defendant argues a case of fundamental dishonesty, any trial is likely to take more than a day, at which the claimant will be cross examined extensively about their honesty and integrity.

Whether the claimant is successful or unsuccessful, he/she is also at risk of contempt of court proceedings and criminal proceedings, which could result in jail should a judge conclude that they were acting dishonestly.

The legal burden of proof in all cases remains on the claimant to prove that the accident occurred in the manner alleged and that he/she suffered the damage, injury and loss claimed for. The defendant does not have to allege dishonesty in its pleadings. Moreover, the Defendant can set out the facts from which it would be inviting the judge to draw the inference that the claimant had not in fact suffered the injuries which he/she asserted and/or that the accident did not happen as alleged.

If you make a claim for injury, you need to understand the serious consequences of dishonesty.  For the sake of trying to claim more money than your strict legal entitlement the consequences can be that the whole case is lost; that you end up seriously out of pocket due to paying the Defendants legal costs and you risk a prison sentence. 

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