Fundamental dishonesty and the burden of proof
This is a judgment on fundamental dishonesty where the judge considers, in some detail, the burden of proof and what a defendant needs to establish.
Published: May 19th, 2026
3 min read
There are important observations about the burden of proof and consideration of the term “dishonesty” in the particular context of personal injury litigation and QOCS protection.
The case: Atuanya v Ministry of Defence [2026] EWHC 758 (KB) Rory Dunlop KC.
The facts
The claimant brought a claim for damages for personal injury alleging he suffered Non-Freezing Cold Injury (“NCFI”) whilst a serving soldier. The defendant obtained video evidence during the course of the action and pleaded fundamental dishonesty. The claimant filed a notice of discontinuance. The court then made an order , “pursuant to paragraph 12.4 of CPR Practice Direction 44, that although the Claimant had filed a Notice of Discontinuance, issues arising out of the Defendant’s allegation that the claim was fundamentally dishonest should be determined at trial notwithstanding that the notice of discontinuance had not been set aside pursuant to CPR Rule 38.4.”
What happened?
The judge found that the claimant had been fundamentally dishonest. He had not been dishonest in the presentation of his psychiatric symptoms, however he had in relation to the need to wear warm clothing. The video evidence showed him wearing light clothing the day after he had attended for a medical examination heavily wrapped up.
Judges quote
” … as a matter of public policy, it is not consistent with the purpose of QOCS to extend its protections to claimants who knowingly tell untruths about something fundamental to their claim, even if they are doing it to convince courts of a truth they believe in. Claimants in personal injury litigation have a protection against costs which most claimants in civil litigation do not. This is to enable Claimants with genuine claims not to be deterred by the prospect of paying large sums in costs if they lose. The purpose of making an exception to QOCS for fundamental dishonesty is to encourage Claimants to be honest or, to put it another way, to discourage dishonest claims, which are a burden on the courts, other court users and on defendants. It would undermine that purpose if Claimants could knowingly tell untruths which are fundamental to their claim and still retain costs protection.”
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