Claimant lawyers say accusations of fundamental dishonesty are being used as a tactic to bully clients, with few consequences if they fail. A solution to strike the right balance could be found in costs
Personal injury claimant Atiquillar Nadeem probably knew his case was doomed when the judge interrupted his evidence to declare: ‘You’re just making this up, are you not?’
The county court judge duly concluded Nadeem was one of the worst examples of inconsistent evidence she had ever seen. A fundamental dishonesty ruling followed, without his lawyer being allowed further submissions.
The insurer in the road traffic accident case pursued Nadeem for contempt but the attempt backfired. The High Court this week not only dismissed the application, but ruled that the claimant was probably telling the truth all along. It remains to be seen what the court decides on costs.
Fundamental dishonesty as a legislative concept turns 10 this year. The Criminal Justice and Courts Act 2015 provided that, where a claimant is on the balance of probabilities fundamentally dishonest on any part of the claim, the whole case can be dismissed – with adverse costs penalties. The only exception is where the claimant stands to suffer a substantial injustice.
The intention was to catch fraudsters, but the reality is that defendant lawyers – anecdotally at least – are increasingly firing fundamental dishonesty accusations at claimants in the hope of seeing off the whole case. A successful allegation can save a fortune, with few costs consequences if it fails. As Nadeem’s case illustrates, some courts are obliging these applications without much further scrutiny.
‘In almost every case a defendant will reference section 57 of the Criminal Justice and Courts Act 2015, but they may not make specific arguments in respect of dishonesty,’ said Corbin Luby, partner with claimant firm Express Solicitors. ‘Even in cases where dishonesty is raised, the reasons can be frustratingly weak. We’ve had lots of emotional responses from claimants, not merely when the allegations are made, but in response to overzealous cross-examinations at trial.’
Claimant lawyers report of clients feeling bullied by the dishonesty threat hanging above them. Perhaps they told a medical expert that they struggle with a particular task, only to find that the problem has later eased: would this count as dishonest?
‘Injured people have good days and bad days,’ one solicitor told the Gazette. ‘Many won’t tell the truth about their bad days because they are scared of being called dishonest. In the worst examples, they want to drop their case altogether, even if it is legitimate.’
'The rules need to be changed to ensure that claimants and defendants are treated in the same way. No dishonesty is excusable but baseless allegations must be discouraged'
John McQuater, Association of Personal Injury Lawyers
According to claimant lawyers, defendants have been known to treat ‘late presentation’ as evidence of fundamental dishonesty. Claimants suffering from depression have been pushed to their limits to prove their condition. In one case, a seriously injured client developed a paranoid feeling that they were being followed. In fact, the defence team had arranged round-the-clock surveillance. Several claimant lawyers reported that they have advised clients to come off social media for fear of revealing a chink in the claim, while others have had to advise claimants not to push themselves into recovery through more physical tasks because of anxiety that defendants will cry foul.
One lawyer asked why photographs are accepted by courts as a sign the claimant is not in pain, adding: ‘They could be having a reasonable day after days of rest. The painkillers or meds could be working that day. They can’t live like hermits and shouldn’t be scolded to have some human interaction.’
Defence lawyers stressed that they are required to test the validity of claims and that in many cases claimants have been found to have acted dishonestly.
The solution to striking the right balance is likely to be found in costs. Claimants believe the odds are stacked against them because there are few consequences for getting a dishonesty call wrong.
John McQuater, spokesperson for the Association of Personal Injury Lawyers, said members see increasing allegations of dishonesty which courts have rejected: ‘The rules need to be changed to ensure that claimants and defendants are treated in the same way. No dishonesty is excusable but baseless allegations must be discouraged.’
Change appears some way off. The government is hardly likely to legislate to make it easier for mendacious claimants (as reform might be perceived by sections of the media).
In Thakkar last year, the Court of Appeal ruled that an insurer who made an unsuccessful claim of fundamental dishonesty did not have to pay punitive costs. Lady Chief Justice Carr admonished both sides for being ‘too ready to throw unnecessary and serious allegations against each other’. Claimant lawyers would not defend such behaviour, but may argue that currently only one side is being punished for it.
12 Readers' comments