Fundamental Dishonesty

Fundamental Dishonesty is generally considered to be a dishonest or exaggerated representation of the facts or injuries suffered in a personal injury claim. It is referred to in section 57 of the Criminal Justice and Courts Act 2015, however is not defined and so is at the Court’s discretion.

The burden of proof to establish Fundamental Dishonesty is on the Defendant, though can be raised at any stage of proceedings, if there are sufficient grounds to do so. It is there to act as a deterrent to Claimants to prevent exaggeration and dishonesty in claims, primarily where the intent is to obtain additional compensation.

In considering dishonesty the Court look at whether the Claimant has been dishonest in relation to something ‘fundamental’ to the claim. For example, this may be where a Claimant exaggerates the extent of their injury or the time taken to recover.

If fundamental dishonesty is established, then the claim must be dismissed in full unless the Court finds that the Claimant would suffer Substantial Injustice (s47 Criminal Injustice and Courts Act 2015). The Judge will consider whether there is injustice to the Claimant in them losing all of their damages, and whether the justice is substantial.

In the recent case of Williams-Henry v Associated British Ports Holdings Ltd [2024] EWHC 806 (KB) the claim related to personal injuries following a fall from a pier. Whilst a liability agreement had been reached, quantum (the valuation of the claim) was not. The case proceeded to an 11 day trial, with a focus on Fundamental Dishonesty.

The Claimant had pleaded her case at £3.5 million and the Defendant believed that the damages should be up to £552,000, on a full liability basis. On review of the evidence the Judge awarded damages of £895,011, on full liability, which was then reduced to £596,704 after the deduction of the agreed contributory negligence. This award was however subject to the Fundamental Dishonesty raised.

In this case the Claimant was considered to have made a ‘conscious gross exaggeration and fabrication of the true duration and/or extent’ of the injuries suffered, to both medico-legal experts and to the Court. Fundamental Dishonesty was therefore established.

In then considering the substantial injustice exception, the Judge considered the following:

1. The amount claimed when compared with the amount awarded;

2. The scope and depth of that dishonesty found to have been deployed by the Claimant.

3. The effect of the dishonesty on the construction of the claim by the Claimant and the destruction/defence of the claim by the Defendant.

4. The scope and level of the Claimant’s assessed genuine disability caused by the Defendant and it’s potential effect of transferring the cost of care to the NHS, social services and the taxpayer generally.

5. The nature and culpability of the defendant’s tort (negligence).

6. What the Court would do in relation to costs if the claim is not dismissed.

7. Whether the defendant has made interim payments, how large are these and will the Claimant be able to afford to pay them back?

8. What effect will dismissing the claim have on the Claimant’s life.

Here the dishonest elements of the claim inflated the damages over £1 million and her dishonesty was widespread, with her still alleging during the trial that she had not lied during the course of the claim. The only apparent reason for the level of dishonesty were the financial gains she would receive if her claim was to be successful as presented.  The additional costs associated with the dishonesty included the costs of additional medical reports, the cost of surveillance and the extended trial and trial preparation required by both parties and the Court. For the scope of her disability the Judge believed that, whilst she suffered a moderately severe brain injury, both her physical and cognitive recovery was that which allowed her to work and live independently. The transfer of the associated treatment costs to the NHS was therefore not considered to be of a significance value.

In relation to the Defendant’s tort, the pier had been in the same condition for a number of years without incident and so this was on the ‘lower level of the culpability scale’. It was also raised that, If the exception were to be applied and some damages still granted, the Claimant would have liability associated with both the Defendant, and likely her own Solicitors, costs. Given the extent of the investigations and trial these were expected to be quite substantial, and it was highlighted that most claim insurance cover may not cover adverse costs in cases where there is a fundamental dishonesty finding. The Judge reiterated that the Claimant was able to return to work as her mental health concerns were a result of her dishonesty, not the incident itself.

After days of evidence and consideration, the Judge dismissed the Claimant’s claim. It was found the claim was fundamentally dishonest and that the substantial injustice exception was not to be applied, though with a minor exception. The Judge did order that the Claimant was not required to pay back a £75,000 interim payment that she had received earlier in the claim. He believed that, together with the dismissal of the claim, this would cumulatively be an injustice due to the potential for homelessness associated with such a decision. The Defendant did not make any Application to recover the interim payment. The remaining damages were not payable to the Claimant and the Judge highlighted that she was ‘wholly unrepentant when she gave evidence and had sought, in parallel, to defraud the DWP and L&G insurance about her disabilities.’

This case is one of a number that highlights the importance of ensuring that the information provided to both Solicitors, medico-legal experts and the other parties involved is honest and true throughout the duration of any claim. Any statements you provide and sign throughout your case will usually include a statement of truth which confirms that any information included is true within your knowledge and belief and so you should always ensure that you have not misrepresented the facts before signing these documents.

If you believe that has been a failure in the medical treatment that you have been provided then please do not hesitate to contact one of the team for some no obligation, no win no fee advice.