If an injured claimant is found to have been fundamentally dishonest about an aspect of their claim, they could end up losing out on any compensation and be ordered to pay the defendant's legal costs, court fees and all other disbursements. They would also become liable for payment of their own solicitor's costs as they will have breached their obligations under their own no win no fee agreement.
What is 'fundamental dishonesty'?
Fundamental dishonesty is an argument which can be raised by the defendant to a claim which alleges that the claimant has been dishonest, and that dishonesty goes to the root of the claim or a substantial part of the claim.
What is likely to be considered fundamentally dishonest?
- Exaggerating any aspect of the claim.
- Advancing a claim which is untrue.
- Providing information which is untrue.
- Inconsistencies in evidence provided.
How can a claimant protect themselves from being found to be fundamentally dishonest?
Defendants will contest cases more if they get any sniff of inconsistency and, thus, it is vital that claimants:
- Are honest and cooperative with their lawyers; and
- Instruct competent lawyers.
The need for claimants to use experienced lawyers is more important than ever in the world of fixed costs, where many firms are just trying to stack 'em high and get cases in and done as quickly as possible. This creates more chance of details being overlooked, with inconsistencies then being jumped on by defendants when they could have been avoided if the claimant's lawyers had addressed and dealt with them beforehand.
Commonly, issues arise where the medical records contain errors or information which is inconsistent with the claimant's reporting of injuries, where the claimant has had previous accidents/injuries that may be relevant, where the claimant is claiming losses that can't actually be substantiated and where the claimant says that 'can't' do something but really they mean that they find it very hard to.
How can a Defendant show the Claimant has been fundamentally dishonest?
Surveillance
The defendant may undertake surveillance on the claimant.
Surveillance is when the defendant will instruct an enquiry agent or private investigator who will follow the claimant and covertly record them undertaking their daily activities in an attempt to 'catch out' the claimant performing activities which they have said they were unable to do e.g., walking, lifting shopping bags or driving.
In the case of Sudhirkumar Patel v (1) Arriva Midlands Ltd (2) Zurich Insurance PLC (2019) the claimant was hit by a bus, when examined by two medical experts he presented as bed-bound, mute and unable to move his limbs. The experts were unsure if the claimant was pretending to have such symptoms or had a severe psychiatric disorder. The defendant insurer commenced surveillance on the claimant and found him shopping with his son, talking and walking. The defendants applied to have the claim dismissed due to fundamental dishonesty. The judge found that the claimant was attempting to mislead the defendants and the court and was fundamentally dishonest. The case was struck out and the claimant had to pay the defendants costs including a payment of £50,000 on account within 3 weeks.
Social Media
Defendants are increasingly perusing claimants' social media profiles to investigate activities they have been undertaking. A social media post could show the claimant hiking or partaking in extreme sports when they allege to have mobility difficulties.
What are the consequences of fundamental dishonesty?
The consequences of fundamental dishonesty are very serious. If the court finds that the claimant has been fundamentally dishonest, they will likely not receive any damages (compensation) and will have to pay the defendant's full costs and their own. If the claimant has made a false statement to the court they may be prosecuted for perjury and/or contempt of court.
In the case of Aviva Insurance Ltd v Aleksander Kovacic [2017] EWHC 2772 (QB) the claimant was involved in a road traffic accident in which he suffered significant injuries. He said that he struggled with walking and had to use a walking stick, could not bend down and was unable to drive. Surveillance was undertaken by the defendant showing him walking unaided and driving long distances. 12 allegations of contempt of court were proved to the criminal standard. The claimant was sentenced to three months imprisonment for each of the 12 counts of fraud to run concurrently and suspended for 18 months. He was also ordered to pay a £10,000 fine within 12 months.
It is very important that you are completely honest with your solicitor and any instructed medical expert throughout your personal injury claim as a finding of fundamental dishonesty can be catastrophic.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
