Insult to injury

The new law enacted by section 57 of the Criminal Justice and Courts Act 2015, enabling dismissal of a claim for personal injury for ‘fundamental dishonesty’ on the part of the claimant, runs a bulldozer through decades of jurisprudence. Where the claimant is entitled to compensation but the court is satisfied on the balance of probabilities that they have been ‘fundamentally dishonest’ in relation to the claim as a whole, or a related claim (for example, by a passenger in the same vehicle in a road traffic accident), then it must dismiss the entire claim unless the claimant would suffer ‘substantial injustice’ as a result.

The court is required to record the damages award it would have made but for the dishonesty, and may award costs against the claimant exceeding that award. For example, if the defendant’s costs are £30,000 and the damages foregone are £20,000, the claimant may be ordered to pay £10,000. But it does not end there.

The previous government was the plaything of the liability insurers’ lobby, as this sloppy piece of legislation shows. The law does nothing to penalise defendants who obstruct claims with dishonest defences or statements of truth and, as the article by Munir Majid shows (‘Defining dishonesty’, 23 November), a failed case leaves a claimant open to spurious allegations of fraud.

Will liability insurers come to regard all claimants whose cases fail, because the judge finds that the claimant has not been telling the truth in their evidence, as fair game? It is right that a claimant’s lawyer should warn clients at the outset about the many calamitous consequences of advancing a claim which they know has false elements either for the claimant’s own benefit or someone else’s: any valid claim may be dismissed; the claimant will be deprived of adverse costs protection; they are at risk of proceedings for contempt of court and possibly criminal charges; and their conduct will vitiate the terms of their solicitor’s CFA and render them liable for their solicitor’s costs. No honest lawyer wants to act for a crooked claimant.

But is it right that these warnings should also encompass one that, if the client gives evidence poorly in the witness box and is disbelieved, all of these frightening consequences may flow? If so, it is a very sad state of affairs for access to justice in England and Wales.

As others have remarked, there is no definition of ‘fundamental dishonesty’ or ‘substantial injustice’ anywhere in the legislation or the Civil Procedure Rules, so one must rely on the good sense of judges up and down the country to confine the operation of this odious law as best they can. Some judges have more good sense than others.

We all know we are going through an era of antipathy towards victims of personal injury seeking recompense. The government has further stoked the anti-claimant hysteria by measures canvassed in the chancellor’s autumn statement to conflate whiplash with fraudulent claims and hopes to deprive a lot of people who have suffered injury from access to justice. The proposals to deny whiplash victims a remedy are staggeringly regressive, but of a piece with section 57.

Soft-tissue injuries today, psychological injuries tomorrow, clinical injuries the next day. It all adds to the insurers’ bottom line or savings for HM Treasury.

Myles Hickey, Dowse & Co, London E8