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One needs to see the full judgment to assess the position in this case. This is not my area of law, and I have never run (or defended) any cases of this type - but to me what the story says is that (a) there was an accident and X was injured through no fault of his own; (b) D found out X had over-egged his injuries; (c) the first instance judge decided that the exaggeration did not fall within 'fundamental dishonesty', and therefore, while damages were less than claimed, they were still awarded; (d) costs followed the event. On appeal, the court decided that X's dishonesty over the extent of his injuries did amount to fundamental dishonesty, and therefore the whole claim was vitiated.

Whatever one may think about the concept of 'fundamental dishonesty', doesn't this show the court system working as it should? Appeal judge decides the first judge got it wrong. That's why there's an appeal process.

The insurers claim that "[t]he original court decision highlights just how hard it is for us to win even when the facts speak for themselves.

"Taking whiplash claims to the High Court on Appeal is a disproportionately expensive way to underline the point that for insurers to defend more cases to trial we need more backing, support and certainty of outcome from the judicial process, especially at first instance."

Isn't this special pleading? The 'certainty of outcome' sought seems in context to mean 'the certainty that we win.' Litigation doesn't work like that, and is one reason why there is an appeals process.

The fundamental dishonesty 'defence' is pretty new, and it is surely not surprising that higher court guidance is needed from time to time to clarify its scope. In time guidance from the appeal courts will assist first instance judges in getting it right first time.