The two key questions all Claimant Solicitors ask themselves when faced with an allegation of ‘fundamental dishonesty’ are: -
- What does it mean?
- What must be proved?
As we know the CPR and Statue that governs ‘fundamental dishonesty’ does not provide a definition. However; it does provide one explanatory note regarding section 57 of the Criminal Justice and Courts Act 2015:
“Section 57 provides that in any personal injury claim where the court finds that the claimant is entitled to damages, but on an application by the defendant for dismissal is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to either the claim itself (the primary claim) or a related claim, it must dismiss the primary claim entirely unless it is satisfied that the claimant would suffer substantial injustice as a result.”
The dictionary definition of ‘fundamental dishonesty’ is:
‘deceitfulness shown in someone’s character or behavior which is of central importance’
This definition is a starting point as there is no conclusive definition, which leaves Judges to make a finding of ‘fundamental dishonesty’ on a case by case basis, which will lead to further uncertainty across the Courts of England and Wales.
The main precedent case law which has tried to define ‘fundamental dishonesty’ is Gosling v Screwfix and Anr (Unrep Cambridge County Court 29th March 2014). HHJ Moloney QC sought to provide some guidance in respect of what might constitute ‘fundamental dishonesty’.
In HHJ Moloney’s view, dishonesty that was ‘incidental’ or ‘collateral’ to the claim would not be fundamental. However, dishonesty that went to the ‘whole or a substantial part of the claim’ was.
The judge held that, in significantly exaggerating the extent of on-going symptoms, the Claimant’s conduct was dishonest, and designed both to deceive and give a false impression. He also held that dishonesty, crucial to around half the value of a claim, was, ‘on any view’ sufficient to be characterized as fundamental. As a result, he was satisfied, on the balance of probabilities that the claim was fundamentally dishonest.
The case still leaves open the question of how much dishonesty is required before a claim can be said to be ‘fundamentally’ dishonest or where the Claimant may argue that the dishonesty was collateral or incidental.
On a separate note, there has been a recent case through the Court, Carol Ravenscroft v Ikea Limited (2015) which has been reported in the Law Society Gazette and the Daily Mail to name a few. This case is an example of the Court ruling in the favor of a Claimant following a Defendant pleading fundamental dishonesty. In this case Ms Ravencroft was injured whilst trying to protect her grandson from a falling cabinet in an Ikea store. The Judge in the case, Recorder Mahmood was of the view the Defendant had taken ‘a stance of suspicion rather than sympathy’. Ikea during disclosure failed to disclose post-accident investigation documents despite an application been made. It was confirmed by the Defendant’s witnesses that statements had been taken by witnesses at trail. Recorder Mahmood made a finding for the Claimant and awarded her £3,500.00 for her injuries. However; should the Judge have made a finding of ‘fundamental dishonesty’ the Claimant would not only have lost the case, she was concerned about whether she would lose her job had her employer found out a court found her claim to ‘fundamentally dishonest’ and also the embarrassment she would have felt if her friends and neighbors were made aware of it. On a harsher note, if the Judge had made a finding of ‘fundamental dishonesty’ the Claimant would have been subjected to paying the Defendant’s costs.
Fortunately, this case was decided in favor of the Claimant which shows that Courts are making their findings based on the evidence at hand on a case by case basis. However; we still need to await future case law on this matter to help narrow and shape the definition of ‘fundamental dishonesty’.