A barrister who successfully argued that a defendant in a personal injury case was dishonest – and won a subsequent costs decision – has said the case should serve as a warning that sanctions are ‘not a one-way street’.
An order issued last month by District Judge Ellery, sitting at Bristol County Court, ruled that the defendant, a motorist, had been dishonest about the ‘mechanics of an accident’ subject to an RTA claim.
The defendant was ordered to pay the claimant £9,000 and also a further £9,700 costs on an indemnity basis – effectively going beyond the fixed costs that might otherwise have been recoverable.
The county court judgment is not binding, but is nonetheless a signal that the courts will penalise unreasonable conduct from defendants as well as claimants. Many claimant lawyers have asked why there is no equivalent to the fundamental dishonesty defence, which puts claimants at risk of being liable for costs and is regularly relied upon by insurers.
Sam Aynsley, from 30 Park Place Chambers and instructed by Admiral Law, appeared for the claimant. His submission was that the same principle of fundamental dishonesty as used against claimants should equally apply to defendants.
The outcome was a reminder that punitive costs orders for dishonesty were not the ‘sole preserve’ of claimants, Aynsley wrote in an online blog. Even in fixed costs cases, if the evidence shows diametrically opposed factual accounts then it was worth preparing a schedule of costs for the entire action. ‘Some defendants might consider that they have little to lose, forming the view that the matter will likely settle, and the notional risk of an adverse outcome on liability will reflect in a better negotiated outcome,’ wrote Aynsley.
‘Some insurers also believe that fundamental dishonesty only applies to the claimant. This is of course wrong and an oversimplification. Dishonest parties can be penalised in costs regardless of whether they brought the claim or whether they are defending it.’
In the case itself, the judge, after deciding that the parties’ accounts were irreconcilable, ruled that the defendant was being dishonest about the build-up to the collision. The claimant’s evidence was preferred on the basis of the substantial damage to his car and no photographs being provided of the defendant’s car.
It was successfully argued that an honest person in the defendant’s position would have accepted responsibility for the accident at the outset, and quantum would likely have been resolved at stage two of the portal process incurring minimal costs. Instead the claimant was unreasonably put to the cost and trouble of overcoming the defence at trial.
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