31 May, 2016
In the case of Hughes, Kindon and Jones v KGM, at Taunton County Court an insurer has secured what is thought to be the first finding of fundamental dishonesty under section 57 of Criminal Justice and Courts Act 2015 (CJCA).
In this matter, all three claimants alleged they had suffered significant injuries lasting 12 months, despite a "very minor incident" with the policy holder.
During the trial, the defendant raised discrepancies in the claimants' evidence including the nature of injuries suffered, failure to seek medical attention and, failing to mention the incident and injuries to their GP until sometime after the incident.
The case in relation to Jones was struck out as he had failed to provide witness evidence, the other claimants received awards of damages in the sum £750 each in respect of a 2 week period, rather than the 12 month period claimed.
The Insurer requested that the claims of Hughes and Kindon be ruled as fundamentally dishonest. Six weeks post-accident, both claimants had told their medical expert that they were still suffering from injuries arising from the incident during their medical examination. The Judge had determined that they had only suffered a two week injury.
The judge struck the claims out in their entirety, ruling that the claimants would not suffer substantial injustice from the decision. The claimants duly lost QOCS protection and were ordered to pay the insurer costs of £6100.
Section 57 of the CJCA 2015 allows defendants to apply to have a claim dismissed where it is found to be fundamentally dishonest in any part, even if it includes a genuine element, unless to do so would cause 'substantial injustice'. Previously a finding of fundamental dishonesty just resulted in the claimant losing the protection of qualified one-way costs shifting
As the post April 2015 cases filter through the system we anticipate that many defendants will be running "fundamental dishonesty" arguments, we equally foresee that the 'substantial injustice' clause of CJCA 2015 will also be tested in the coming months.