9 December 2024
Fundamental dishonesty: what are the implications for claimants in practice?
Kieran Martin in our Clinical Negligence team previously looked at fundamental dishonestly in December 2023: What is Fundamental Dishonesty? – True Solicitors
Fundamental dishonesty is an allegation pursued by defendants where they consider that the claimant has brought an exaggerated or fraudulent claim. The allegations can relate to the whole claim or any part of it. A finding, or mere allegation of fundamental dishonesty can have significant implications for claimants and their representative as seen in the recent cases below.
Mehmood v Major [2024] EWHC 1057
An application made by the claimant for interim payments in a personal injury claim was refused by Master Fontaine despite liability being admitted as fundamental dishonesty had been alleged. It was stated that the claimant had failed to establish that, with their admission, the defendant must have admitted that it was liable to “pay damages or some other sum” under CPR 25.7.(1)(a). It was held that the range which the claimant might recover at trial was from nothing up to the full amount claimed as if the allegation of fundamental dishonestly was established, no damages would be payable. It was therefore not possible for the Court to identify an irreducible minimum or conclude under CPR 25.7(4) “a reasonable proportion of the likely amount of the final judgment”.
Williams-Henry v Associated British Ports Holdings Ltd [2024] EWHC 806
The claimant received no damages whatsoever in a claim for personal injury, despite the genuine part of the claim being assessed at £596k. This was following Mr Justice Ritchie’s finding of over 100 instances of the claimant being dishonest in respect of her condition in medical reports to experts, the DWP and in her evidence at court. It was held that there would be no substantial injustice in dismissing the entirety of the claim for fundamental dishonesty under s57 Criminal Justice and Courts Act 2015.
Hiren and Thakkar and Ors v AXA Insurance UK PLC
The claimant failed in their appeal for an order for indemnity costs against the defendant after their allegations of fundamental dishonesty had failed. The claimant’s submission that the burden of proof on indemnity costs was reversed where the allegation had failed was rejected. It was held that the burden remained on the party seeking indemnity costs. Although the Court accepted that a dishonest claimant will usually attract indemnity costs and so a failed allegation of fundamental dishonestly should lead to the same outcome for the defendant, they refused to overturn the lower Court’s judgment and make an order for indemnity costs.
