The First Step Towards a Successful Claim is to be Honest
It’s no secret that there has been an influx of fundamental dishonesty Defences since the commencement of Section 57 of the Criminal Justice and Courts Act 2015.
What is fundamental dishonesty?
Whilst there is no definition or guidance to the interpretation of the phrase, it was introduced into CPR 44 in April 2013 as one of the ways in which Qualified One-Way Costs Shifting (QOCS) could be displaced. It was only in Gosling -v (1) Hailo (2) Screwfix Direct (2014) and Zimi v London Central Bus Company Limited (2015) in which the meaning of the word “fundamental” was considered and defined as being more than merely dishonest on a collateral matter or a minor, self-contained head of loss. “Fundamental” had to go to the root of the matter or a substantial part of the claim or had to be something that was crucial and of central importance to the case.
If a Claimant forgets to mention when being asked about a previous road traffic accident or previous injury to his doctor (despite being fully recovered prior to the index accident), as innocent as this error may have been, the chances are that the Court will find this as being dishonest and has the power to strike out not only the Claimant’s personal injury claim but the whole claim in its entirety.
What is Section 57?
The phrase was subsequently utilised with greater scope in Section 57 of the CJA 2015, if a Claimant was found to be fundamentally dishonest, this allowed the Court to strike out the claim or a part of the claim, therefore providing another means for a Defendant to recover their costs.
Why is it such a common Defence?
It is not uncommon for allegations of fundamental dishonesty to be raised in the course of litigation. It is however a way and means for defendants to recover their costs. Since QOCS came into effect on 1st April 2013, if you suffered a personal injury claim after this date then in most cases a Claimant would benefit from QOCS, which meant that if a Claimant lost his case at trial then he would not need to pay the Defendant’s costs. QOCS came into effect, in essence, to protect the Claiming party from any cost consequences.
Yes, this may seem unfair if the Defendant successfully defended the claim, however, there was some sort of rationale behind this. The Costs the Defendants have lost out on, on cases they win, they have saved with the recoverable additional liabilities they would have paid on the cases they lost.
Let there be no confusion, it should be noted that a Defendant does not need to plead Fundamental Dishonesty to raise it. Arguably a Defendant should raise it at some point during the course of litigation allowing the Claimant a proper opportunity to deal with it as opposed to being ambushed at trial during cross-examination.
When does a Claimant not have the benefit of QOCS?
Under certain circumstances, a Claimant will lose the benefit of QOCS. The most common being if a Court was to find that a Claimant had been fundamentally dishonest, then the Court has the power to strike out the Claimant’s claim in its entirety, resulting in the Claimant paying the Defendant’s costs under CPR 44.16(1). The Claimant would lose the benefit of QOCS which ordinarily would have prevented a Defendant from being able to recover their costs of successfully defending the claim brought against them.
How best to deal with such claims?
From a Claimant’s perspective tackle these inconsistencies early on in the proceedings. Ask yourself are the allegation raised well-founded, will they hurt your client at trial? Can we address the inconsistencies within the Claimant’s evidence? It is of paramount importance to have conferences with the client as this will allow you to determine whether they will make a credible witness.
Defendants will gather evidence from the outset. They will obtain medical records, as previous injuries and accidents are contained within the Claimant’s medical records. Defendants will often consider doing social media searches. An Instagram or Facebook post around the time of the accident may indicate that a Claimant was in fact at work and “he could not go to work” was not the case.
And the best advice of all – be honest!
Our PI and RTA specialists are on hand to advise and represent you should the need arise.