Punish defence lawyers throwing around dishonesty slurs, say claimants

Regulators have been urged to come down heavily on defendant lawyers throwing unfair dishonesty allegations at civil claimants. The Association of Personal Injury Lawyers (APIL) used its response to the Legal Services Board's consultation on ethics to highlight increasing instances where claimants have been accused of being fundamentally dishonest.

The consequences of a dishonesty finding are severe, with claimants often losing their right to recover any part of the claim and facing stiff costs bills.

But APIL says the same rules do not apply to defendants alleging dishonesty with no foundation. Its response said that some unscrupulous insurers – supported by defendant lawyers – use a ‘scattergun approach in making allegations of fundamental dishonesty in the hope that something sticks’.

APIL president Matthew Tuff said: ‘There are no consequences for defendants who make unsubstantiated allegations of fraud against claimants. The rules are being utilised by some defendants as a cynical ploy to avoid paying compensation to honest injured victims of negligence.’

APIL’s response cited last year’s case of Cullen v Henniker-Major to illustrate its concerns. This clinical negligence claim arose from a negligently delayed diagnosis of laryngeal cancer, but the defendant accused the victim of misrepresenting the level of care and assistance she needed. The dishonesty allegation was rejected by the court, and APIL said this was an example of a growing trend where insurers make baseless accusations.

The claimant body said there is a ‘very real tendency’ for defendant solicitors in these situations to prioritise their duty to the client at the expense of their duty to uphold public trust. This is particularly likely when institutional defendants, with larger resources, are taking action against individuals whose recoverability of costs is fixed.

The response said there should be a ‘clear and severe sanction’ imposed by regulators to deal with situations where dishonesty allegations are found to have no substantive basis.

Tuff added: ‘It’s a tactic to financially and psychologically exhaust vulnerable injured people, who face having their cases dismissed and being held liable for the defendant’s costs as well as their own. This underhand behaviour will escalate while there are no strong sanctions for defendants who make bogus allegations of claimant dishonesty.’