19 December 2023

Kieran Martin, a fee earner in the Clinical Negligence Department considers what Fundamental Dishonesty is and why it is important to consider.

What is fundamental dishonesty?

Fundamental dishonesty is an argument raised by defendants and their representatives whereby they allege that the claimant has advanced an exaggerated or fraudulent claim. It is generally raised in the defence, although it may be raised at a later stage of the litigation. The allegations can relate to the whole claim or any part of it.

The term “fundamental dishonesty” is referred to in the Criminal Justice and Courts Act 2015 but is not clearly defined. This lack of definition provides the courts with discretion as to how they interpret the allegations.

Under section 57 the courts have the power to dismiss the claimant’s whole claim where it finds that they have been fundamentally dishonest in a clinical negligence claim, unless it is satisfied that doing so would cause them substantial injustice.

The consequences of a finding of fundamental dishonesty are significant. The dismissal of the claim under section 57 may result in the claimant being awarded no damages and them being ordered to pay the costs of the litigation for both parties, which are usually significant. The Court also has the option to impose criminal sanctions against the claimant, including imprisonment for contempt of court.

In the clinical negligence case of Preater v Betsi Cadwaladr University Health Board [2022] the issue of fundamental dishonesty was considered in a claim arising from a vaginal mesh surgery in 2014 which resulted in the Claimant suffering significant injuries, including chronic pain. Liability was agreed between the parties and the only outstanding issue at trial was the amount of damages to be paid.

In the Defendant’s defence it alleged that the Claimant had exaggerated her symptoms to the medical experts, that she had failed to disclose that she had carried out paid work post-incident offering beauty treatments and that there were inconsistencies in her evidence gathered from their surveillance efforts.

The Court found that the Claimant had a condition which caused her pain levels to fluctuate on good and bad days, and she presented this to the experts at its worst, which sufficiently answered the experts’ questions. The Court also accepted that the Claimant had not considered the undeclared beauty treatments to be “work” as she earned less than 10% p/a of what she did from her pre-incident career in marketing. The Court went on to find that the Claimant was not dishonest and awarded over £970k in damages.

The Judge was critical of the Defendant’s experts for reaching beyond their fields of expertise and offering opinions on the Defendant’s surveillance material and for commenting on the allegations of dishonesty, which effectively blinkered their approach and unbalanced their opinion. Importantly, they had also not been asked to reconsider their opinions after the Claimant had provided explanations for the Defendant’s allegations, which the Court would go on to accept.

Each case will ultimately turn on its own facts whenever allegations of fundamental dishonesty are raised.