Fundamental dishonesty
So, when could a claimant be found to be fundamentally dishonest? One of the most likely instances in clinical negligence claims is where a claimant exaggerates their symptoms or the extent of their injuries. For example, Mr X tells a medical expert that as a result of the defendant’s negligence he has been unable to work. However, upon receipt and review of his employment records his employer states that Mr X has been working and provides details of this. As Mr X is making a claim for loss of earnings, his payslips and employment information are disclosable to the Defendant, along with the medical evidence that we have obtained. These documents are contradictory and highlight that Mr X has been untruthful during the claims process.
Has the Claimant been fundamentally dishonest?
Following an update to the Civil Procedure Rules in 2013 if, on the balance of probabilities, a valid Claimant (i.e., liability has been found in their favour) is found to be fundamentally dishonest the claim can either be struck out or the defendant can obtain an order for costs which can be enforced against them.
The burden of proof when is on the defendant to convince the court that a claimant has been fundamentally dishonest. Therefore, in the above example they would need to convince a judge that the claimant consciously exaggerated the limitations of his injury in order to maximise his compensation.
If the judge agrees, then regardless of whether or not Mr X has a valid negligence claim, his claim will fail.
A finding of fundamental dishonesty would also invalidate the Conditional Fee Agreement between the claimant and his solicitor and the legal expenses insurance that the solicitors may have taken out on his behalf. He could therefore be personally responsible for not only the defendant’s costs but for his own solicitors’ costs as well.
Withholding Information and ‘Palmer’
In the recent case of Palmer -v- Matas and Liverpool Victoria Insurance, Ms Palmer was involved in an RTA where she was hit from behind. The driver was convicted of drink driving and liability was admitted. Ms Palmer alleged that she sustained a minor whiplash injury but most importantly a brain injury that, over seven years post incident, was having a major impact on her work and social life.
At trial, the defendant deployed over 700 pages of social media images of the claimant on holiday and taking part in various activities which they argued were clearly indicative that the claimant was exaggerating her injuries. However, the judge found that the claimant had directly answered the questions put to her by the experts in relation to her symptoms and that she was not consciously being deceitful by not volunteering further information about her symptoms. She was truthful in the answers given and was therefore not fundamentally dishonest.
The Takeaway
‘Palmer’ is a very unusual case, and there are many claims where the defendant does succeed on their allegations of fundamental dishonesty. It is therefore important to always be truthful and transparent during the claims process because regardless of whether or not a claimant has a valid claim, a claim built on exaggeration and untruths is doomed to fail
Disclaimer
This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2024
