Fundamentally dishonest or inconsequentially misleading?

The civil justice system is currently stacked more against personal injury claimants than it ever has been and this will only get worse with further reform due next year under the Civil Liability Bill. 

  • Claimants injured by another’s negligence are no longer able to recover their full legal costs from the defendant.
  • The court fees that claimants now have to pay to start their claims have increased by over 600% in the last 5 years.
  • Strict liability has been removed from the health and safety regulations meaning that the evidential burden on claimants injured in the workplace is much higher.

The result of this is that motor claim accidents have reduced by around 20% in the last 5 years and workplace accident claims have reduced by around 30% over the same period.

On top of all of this, claimants that do pursue their claims at court now do so in the full knowledge that if they are found to have been fundamentally dishonest by a Judge about any aspect of their claim, the entire claim could be struck out, they could be ordered to pay the defendant’s full costs and they could be prosecuted through criminal proceedings. Please note that there are no similar sanctions for defendants who are dishonest in defending claims.

Therefore, defendant solicitors are now routinely instructing agents to conduct surveillance of claimants knowing that one small piece of footage which appears to be inconsistent with the claimant’s case will put huge pressure on the claimant to significantly compromise their claim or even withdraw it. If defendants fail to obtain any surveillance which is helpful to their case, claimants are unlikely to ever know about it.

The case law on what amounts to ‘fundamental dishonesty’ has not been entirely consistent and the judgment in the latest case of Wright -v- Satellite Information Services Ltd [2018] shows that each allegation of fundamental dishonesty will be decided based on the individual circumstances of the case. This is not entirely helpful for claimants or defendants but it is good to see that this judicial interpretation takes into account the fact that claimants will normally be inclined to focus on what their symptoms are like at their worst when discussing their injuries with medical experts and when describing their symptoms and capabilities in witness evidence. As long as this is not found to have been done in order to deliberately inflate the value of the claimant’s claim, there is scope for a Judge to find that misleading information does not amount to fundamental dishonesty.



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