Further Plans to Address Dishonesty in Claims Proposed

12 Dec 2014

The Criminal Justice and Courts Bill, which is currently being considered by Parliament, is expected to be passed into law by early next year (probably April 2015). The current Clause 49 concerns personal injury claims where a finding of fundamental dishonesty has been made. It is important to note that this Clause only applies to personal injury claims and not other civil claims.

In particular Clause 49(1)(b) sets out that a court should dismiss the entire claim if there is a finding that the Claimant has been fundamentally dishonest in relation to any part of either the primary claim or a related claim. The only time the Court is able to not dismiss the claim, in such circumstances, is where it believes that the Claimant would suffer "substantial injustice" if the claim was dismissed in such a manner.

The result of this Clause will be that where there is any finding that a Claimant has been "fundamentally dishonest", for example by exaggerating his or her symptoms, the entire claim (even genuine injuries and losses) would be dismissed.

Unfortunately neither "fundamental dishonesty" nor "substantial injustice" are defined within the Bill and it must therefore be a concern that, assuming the Bill does pass Parliament, this will give rise to increased satellite litigation and a degree of uncertainty on such issues.

It is important to note that the Clause also extends to counter claims.

The Clause applies to any cases issued from the day the section comes into force (regardless of when the claim arose).

This Clause raises the interesting issue that a claim, where liability has been admitted, could still be lost completely at a quantum hearing. For example a claim for a person injured when travelling as a passenger, a seemingly innocent party to the issue of liability, could lose completely, even when it is established that he or she probably suffered injury as a result of the incident. Further there is likely to be an increase in complications arising from interim payments, as, in principle the Defendant may be able to obtain an order that the Claimant repays such interim payments (which may have already been spent on things such as treatment), if he receives nothing due to a finding of "fundamental dishonesty".