Fundamental dishonesty: Difficult to assess, but potentially serious for personal injury claimants

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Fletchers trainee Katelyn Williams on the new Criminal Justice and Courts Act


S57 of the Criminal Justice and Courts Act was introduced on 13 April 2015 into civil law, specifically in relation to personal injury proceedings.

This statute states that where a claim is found to be fundamentally dishonest in any way whatsoever the court must dismiss the whole claim even if there is some genuine element, unless to do so would cause “substantial injustice.”

This recent development has kept me (as a trainee at Fletchers Solicitors within the Serious Injury team) very aware of the potentially serious ramifications of such a principle being applied to one of our cases. My team deals with cases which vary in value from £25,000 up to multi-millions of pounds. This concept therefore has the potential to have an adverse effect on not only the recoverability of our costs, but also on each of our client’s settlement damages.

Such a concept has posed a number of issues: should, for example, claiming for four taxi journeys when only one was actually incurred mean that a case which is catastrophic in nature and worth multi-millions of pound be disallowed on the basis that the claimant has been dishonest? If not, where should the line be drawn?

Prior to this rule, a finding of fundamental dishonesty simply resulted in the claimant losing the protection of qualified one-way costs shifting (QOCS). Lawyers will be aware that the basis of QOCS is that an unsuccessful claimant will not be required to pay the defendant’s costs but the defendant must pay a successful claimant their own costs. It seems unlikely that the disapplication of QOCS (awarding full recovery of the costs of a defendant) would follow where the dishonesty goes only to part of a claim. However it is yet to be seen whether the court will feel bound to interpret fundamental dishonesty in relation to QOCS in the manner that would be required by s57.

Obvious fundamental dishonesty

An unreported case in 2015 involving a Mr Burnett, a semi-professional footballer, concerned him tweeting about playing a match just 24 hours after he had claimed for a whiplash injury.

He originally claimed £2,000 in damages for an accident but talked about his skills on the pitch a day later on social media. He claimed that injuries to his neck and back meant he would be unable to play for his team. He was subsequently ordered to pay £11,000 in costs when the court found his claim to be fundamentally dishonest.

Here, the claimant had been fundamentally dishonest in relation to the whole of his claim and should not receive any damages. If anything, he deserved more of a punishment by trying to ‘cheat the system’.

However, can the same really be said for claimants who do have a genuine claim and it is merely a small part of their claim that they have been dishonest about?

In Hughes, Kindon and Jones v KGM (2016), all three claimants alleged they had suffered injuries lasting 12 months following what was a very minor incident. At trial, a number of inconsistencies in the claimant’s evidence were highlighted, including the nature of the injuries suffered, failure to seek medical attention, and — in the case of one claimant — failure to mention the incident and injuries to their GP several months later. The claim was struck out for the claimant’s failure to provide witness evidence, with costs awarded to KGM.

However, one judge found that the impact was sufficient to have caused injury to Hughes and Kindon but for a period of just two weeks, rather than the 12 months claimed. On this basis, he awarded the pair £750 each in damages. The defendant insurer, using s57, said it would be unfair for them to still be liable for their costs.

In striking out the claims in their entirety, the judge said that the two claimants had presented a deliberately inaccurate position to the medical expert for financial gain. He also ruled that the claimants would not suffer substantial injustice from the decision. The claimants lost QOCS protection and were ordered to pay insurer costs of £6,100 and permission to appeal was refused. It would therefore seem the courts are adopting a very strict approach in this area.

Should mild exaggeration be enough to render a claim completely unsuccessful?

In the case of Gosling v (1) Hailo (2) Screwfix (2014), the claimant suffered a serious knee injury, requiring an arthroplasty operation, following an accident with a ladder manufactured by Hailo and sold by Screwfix.

The claimant claimed serious restrictions in his ability to function and founded a very large part of his case on his ongoing disabilities. The defendants conducted covert surveillance to see whether the claimant’s ongoing symptoms were as significant as he claimed. Footage showed the claimant shopping at some length in the morning without using a crutch. However, the same afternoon, the claimant attended a medical appointment during which he said he had constant pain, used a crutch and his wife did his shopping.

The medical experts were shown the footage and stated in a joint report that it showed the claimant was being dishonest about his problems. On being presented with the footage, the claimant settled with the first defendant for a significantly reduced amount of damages (£5,000 against the £80,000 pre-footage value of his claim) plus costs, and discontinued the case against the second defendant as they sought to argue that the claim regarding both liability and quantum was fundamentally dishonest.

It was held in this case that fundamental dishonesty was so clear the matter could be dealt with on paper and not by way of an oral hearing. Despite the arguments of a hearing wasting costs, being disproportionate and encouraging satellite litigation, did the claimant not deserve a right to have himself heard and convince the court that the papers were inaccurate? The footage showed the claimant was actually limping and still struggling despite not using a crutch.

When does exaggerating turn into being fundamentally dishonest? It would seem that where dishonesty goes to a large part of the claimant’s claim to damages, it should be characterised as being fundamental to the claim. Thus, assessing what constituted fundamental dishonesty requires placing a value on the dishonesty to the claim.

What should we be doing about it as lawyers?

I have been researching this particular topic, primarily to advise many of our clients and keep them up to date on this recent development. Essentially, clients need to be aware that any slight exaggeration of their injuries or any dishonesty in their claim, however small, has the potential effect of it being struck out and no damages being awarded.

In terms of putting these thoughts into action, I have been amending the covering letters for witness statements and schedule of losses which we send to our clients to read:

Under the Criminal Justice and Courts Act 2015 the defendant can apply for dismissal of the claim if the court is satisfied that, on the balance of probabilities, you have been fundamentally dishonest in relation to the primary claim or a related claim.

The future

So far, it would appear that intentional deceit and also mild exaggeration are enough for claims to be held as fundamentally dishonest and to be struck out as a result. The outcome of a small part of the claim being dishonest is yet to be seen. However, judging from the strict interpretation of the law in the cases mentioned, it is likely the court will have no hesitation in applying the principle in a catastrophic case unless substantial injustice was to be caused.

The question of fundamental dishonesty is yet to receive the consideration and attention that it deserves. Both the process and the basis for such a finding are likely to develop as the rule is applied and such application is tested.

Katelyn Williams is a trainee solicitor at Fletchers. She studied a law degree at the University of Sheffield and is currently completing her Legal Practice Course at BPP Law School alongside a training contract.


Skadden 1PQE



Maybe you could write an article on being a virgin.

Compared to most of the journals I thought it was well-written, persuasive and interesting.


I agree


Thank you for your unsolicited opinion. You may now get back in your box.

The original #sainsburysbasics

You stole my comment.

Ellie (PI solicitor)

No doubt in my mind the CJCA was a positive development in PI law

Defendant PI

Yes, spot on.

Courts are finally accepting how much Claimant solicitors have been getting away with other the past years.


Except it impacts the claimant more than the solicitor!! Solicitors will take a claim to court in the hope of winning and having there fees paid when they know damn well there’s a good chance it won’t win. They don’t look out for the interest of their clients, they just don’t want to loose out on fees. Then bam clients left with £5000 on defendants fees to pay because of bad advice and guidance! So it’s not stopping the solicitors it’s making it worse for innocent people, they’re not being advised correctly by so called experts of the law. They just want a chance at a payday!


Really good, well structured article


Really good article. The one important word in the legislation, however, that will give lawyers a headache is ‘fundamentaly’.


Good article but the Act isn’t “new” as suggested.


While it was a sensible piece of law, the volume of pleadings of fundamental dishonesty made upon huge evidential leaps is troubling. A couple of firms seem to live off stock defences about fundamental dishonesty regardless of the facts and evidence. We all know who they are.


This post has been removed because it breached Legal Cheek’s comments policy.


…but she is a hottie….


Very well structured article Katelyn.


This article made very interesting reading and it certainly gives you food for thought.


A very well written, informative article. The writer is to be congratulated on addressing one of the key issues within not just the legal world, but within society as a whole.


Well explained.


Did you know your article was being plagiarized without any acknowledgement of the original author?


I’m in the process of trying to claim for accident nearly three years ago!! Because I said that I felt the effects the same afternoon and when talking to the lady who hit me Insurance I was asked was anyone seriously injured, I said no I don’t think so. It wasn’t until I went back to work a week later that the problem became apparent. I have five prolapsed discs and on going back problems plus anxiety. If I take this to court I could be fined fundamentaly dishonest. Costs could be 30-50k!!!! I was hit from behind!!!! I am now the villian. They use this scare mongering to scare us from perusing a claim!!! There’s NO JUSTICE ⚖ The law stinks.

lee harding

I agree. I used the word wife andCHILD in my statement of truth and the defendant claims i meant son. I said it’s my god child not son he even has a different name . So due to this the defendant said I was dishonest my barrister agreed they dropped hands and I get a 25k bill
And the judge never even made a ruling as this happend when he left chambers.
Now I’m being pursued for costs.
No justice system


I had an issue this year myself. The defence barrister in my case tried to claim that the accident happened in a completely different way to how I had described it. He was wrong, however that didn’t matter to the district judge as she believed him. He wasn’t present for the accident but he was believed over me. It was absolutely baffling! I got hit with their costs for just over £4K!
No evidence of dishonesty was presented against me, just a defence barrister using clever sound bites to convince an incompetent judge that what I was saying wasn’t true.
I’d just advise against anyone claiming nowadays as you seem to be taking an almighty risk even if what you’re saying is truthful.


I was involved in an accident, hit from behind. The driver admitted liability but because I didn’t go to my doctor (due to being low impact and painkillers I had at home did the trick) I was fundamentally dishonest. I had no idea they would rule this on such flimsy reasons or I would never have bothered to make a claim. Also I would like to add my solicitors said this wouldn’t be a problem until 2 days before court, they called me and said have a good reason ready for court!! The driver who hit me was also in a brilliant job were as I am not, I think this also went against me as the judge apologised to her from the beginning about having to call her the defendant. How is that fair?? Automatically I was looked down on because I don’t earn a ton on money or speak with a posh accent!! No justice whatsoever and might I add out of pocket so my kids don’t get a holiday this year!

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