Recent cases remind us that the consequences for a Claimant to being found to be fundamentally dishonest in a personal injury claim are extremely serious and can result in the dismissal of a genuine claim, payment of substantial costs and a criminal conviction.
Generally an unsuccessful Claimant in a personal injury claim issued after the 1st April 2013, will not be required to pay the Defendant’s costs. However there are exceptions to this, which include fundamental dishonesty. This means a Claimant who is found to have fabricated an accident or injury is likely to find themselves liable for the Defendant’s full costs. Following an unsuccessful trial, or at any other time the Defendant has secured an unenforceable costs order against the Claimant(so if the Claimant discontinues the claim), the Defendant can make an application under the Civil Procedure rule 44.16 for the costs order to be enforceable as the Claimant has been fundamentally dishonest. This will be for the full amount of the Defendant Costs. This applies to a rear end shunt victim who is found to have fabricated their injuries (even if the Court accepts there was an impact). It also could apply to the accident at work victim whose employer denies the accident took place and at trial the employer’s evidence is preferred.
Even when liability is admitted and there is no doubt that the accident is genuine and the Claimant sustained an injury, a Claimant is still at risk of having their case struck out and facing an order to pay the Defendant’s costs. Under section 57 (2) Criminal Justice Act 2015, the Court MUST dismiss a personal injury claim if it is satisfied, on the balance of probabilities that the Claimant has been “fundamentally dishonest” in respect of the primary or related claim, unless the Claimant would suffers substantial injustice if the claim was dismissed. Substantial injustice has to be more than loss of damages. Fundamental dishonesty is not defined however it seems that dishonesty will be deemed to be fundamental if it goes to the whole or a substantial part of the claim. Hence significant exaggeration of symptoms will amount to fundamental dishonesty. If the court dismisses the claim for fundamental dishonesty, it must record in the judgment the amount the Claimant would have be awarded if the claim had succeeded. The Claimant will then be ordered to pay the Defendant’s costs minus the amount he would have been awarded had he not been fundamentally dishonest.
In the case of Patel V Arriva Midlands Lid, the High Court has recently thrown out a Claimant’s claim before a trial on the basis that the Claimant has presented “an egregiously untrue picture” of his disabilities. The Claimant had claimed damages after a collision with a bus, following which he suffered a heart attack. He claimed he was significantly disabled. When the Claimant was examined by the experts he was found in bed, mute, almost entirely unresponsive and unable to move his hands, arms and legs. Surveillance footage showed him walking unaided and talking. It was accepted that the Claimant’s condition changed from day to day, however the High Court, made a finding of fundamental dishonesty and the whole claim was dismissed. So the Claimant who has suffered a serious life-changing injury has to be very careful that they give an accurate picture of their day to day restrictions and clearly describe any “good days”. Some seriously injured Claimants can be probe to unintentional or even intentional exaggeration however the consequences could be catastrophic.
The “fundamentally dishonest” Claimant is also at risk of criminal proceedings. In the case of Zurich Insurance Plc v Romaine (2018) the Court of Appeal over ruled the High Court’s decision to refuse permission to bring committal proceedings. The Claimant had brought a claim for noise-induced hearing loss against his former employer. He was found to have given false statements in respect of not having any noisy hobbies as it later transpired that he rode a motorbike and played electric guitar and had been lead singer in a rock- and- roll band playing regularly at pubs, clubs and larger events. The Claim was struck out as a result of the dishonesty. In his Judgment granting permission to bring committal proceedings, Haddon-Cave LJ stated that “claimants who discontinue cases when the “game is up” should face consequences