Is it only claimants who are ‘fundamentally dishonest’?
The Criminal Justice and Courts Act 2015 (section 57) enabled the courts, in certain circumstances, to make a finding of ‘fundamental dishonesty’ against a personal injury claimant.
A claimant may win but, if part of their pleaded case is not genuine, their whole claim is liable to dismissal – not just the dishonest element.
As someone who has worked both as claimant solicitor and defendant insurance fraud practitioner, I consider this sanction to be fair. Indeed, I find it tedious to read claimant and defendant practitioners preaching that dishonesty needs to be fought and that we should unite to do this. That is a truism.
Despite this united front, why does the act then fail to consider dishonest or false defences and representations? Inexplicably, claimants are the sole target. Here is a truism of my own: a defendant can also be ‘fundamentally dishonest’.
I encounter false pleaded denials of liability with increasing regularity: at a moderate level, a defendant alleging that non-existent systems of inspection are in place; at the more significant level, refusal to disclose incriminating documents or a denial of their existence, and even a downright lie denying the existence of a blatant defect.
I note that defendant dishonesty fails to see the light of day in a courtroom. Unsurprisingly, defendant representatives have admitted liability quickly and settled those claims generously.
With the mechanism of part 36, claimants have been financially estopped from exposing defendant dishonesty at hearings. Has this caused the judiciary and legislators to assume that only claimants can ever be ‘fundamentally dishonest’?
Defendants allege ‘fundamental dishonesty’ as a new tool in their armoury, with the benefit of a reversal of qualified one-way costs shifting if successfully established. But should a claimant and their representatives not be awarded exemplary damages or indemnity costs when this is proved against a defendant?
It remains to be seen how widely the courts will define and apply ‘fundamental dishonesty’. But section 57’s narrow scope appears symptomatic of the wearisome ‘anti-compensation culture’.
Ross Whalley, solicitor, Timperley, Cheshire
