In April 2013 qualified one-way costs shifting was introduced to personal injury claims. This means losing claimants will normally have no liability for costs. However there are exceptions and one of those is where the claim is found ‘on the balance of probabilities to be fundamentally dishonest’.
Fundamental dishonesty is not defined and therefore it will lie at the discretion of the Court as to whether a claimant has been fundamentally dishonest. The main authority is the case Gosling [2014], which was before our local Circuit Judge, where the claimant significantly exaggerated his injuries. The qualified one-way costs shifting exception was applied and the claimant only received half of his damages. The Judge said ‘if the dishonesty goes to the root of either the whole of his claim or substantial part of his claim, then it appears to me that it would be a fundamentally dishonest claim, a claim which depended as to a substantial or important part of itself upon dishonesty’.
This is a principle that has now been adopted in other decisions.
In addition to this, the Criminal Justice and Courts Act 2015 came into force on 13th April 2015. Section 57 provides for a claim to be struck out in its entirety if there is ‘fundamental dishonesty’. Once again the phrase has not been defined so it will be for the Courts to decide how the phrase should be interpreted.
In light of this I can foresee a trend where defendants are going to be more inclined to argue that claimants are being fundamentally dishonest. It is now more important than ever for a claimant to instruct specialist solicitors.
