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What is ‘Fundamental Dishonesty’?

In all civil proceedings, the Court strictly requires the claimant to be truthful in the information they provide and to conduct their claim honestly. The claimant is also expected to not exaggerate any part of their claim.

This means that when you provide your solicitors with any information relating to your claim, you must ensure that it is accurate. This includes, for example, information you provide relating to the nature of your injury, the losses you have suffered, the people involved and so on.

If a defendant can successfully establish that you have not been honest, the Court can hold that you have been ‘fundamentally dishonest’.

Even if you have been honest in most aspects of your claim, if you have been dishonest in one area there is a risk that your whole claim could be dismissed.

Defendants may in some cases carry out video surveillance and seek to exploit any discrepancy between the video evidence and a claimant’s statement to support an allegation of fundamental dishonesty. Likewise, defendants may seek to exploit any discrepancy between a claimant’s social media profile and their witness statement. It is even possible for the data contained on a claimant’s ‘Fitbit’ or other personal tracking device to provide evidence that the claimant has exaggerated the extent of their injuries.

What happens if a claimant is found to be Fundamentally Dishonest?

The consequences for a claimant who is found to be fundamentally dishonest can be severe and it is an important consideration to make throughout the entirety of a claim.  

Ultimately, a finding of fundamental dishonesty can result in your claim being struck out and you being ordered to pay the other side’s costs as well as your own. This can be devastating, especially if you were likely to win your case and you required the compensation for your future. 

Normally, claimants in personal injury/clinical negligence cases benefit from a concept known as “Qualified One-Way Costs Shifting” (“QOCS”). The basic rule is that the claimant does not have to pay the defendant’s costs if they lose their case. However, the finding of fundamental dishonesty is an exception to this rule, meaning that the claimant may have to pay the defendant’s costs and risk having their claim struck out.

Where a defendant succeeds with a challenge to the QOCS rule, the claimant can lose all their compensation.

What difference does it make if I win/lose my case?

If you win or lose your case, and the defendant has successfully established fundamental dishonesty, the following can occur:

  • If you lose your case:

Under the Civil Procedure Rules, you will lose the protection of QOCS as outlined above. This means that you will have to pay your opponent’s costs, as well as your own costs.

  • If you win your case:

You will have to pay your opponent’s costs out of the compensation that you have been awarded. This means that if the defendant’s costs exceed the value of your compensation, you will receive nothing and will have to pay the difference. 

The case of Iddon v Warner [2021]

The Claimant brought a claim against her GP for a missed diagnosis of breast cancer resulting in a mastectomy and axillary dissection, which would otherwise have been unnecessary.  She claimed that these treatments had left her with incapacitating chronic pain.

She alleged that she was significantly disabled, such as to require extensive care for the rest of her life and that she had been a keen sportswoman prior to her treatment but could now no longer undertake the running and swimming she used to.

The Defendant filed a witness statement from an intelligence analysist, who had completed internet searches and surveillance which had revealed that the Claimant had participated in a number of sporting events, ranging from open water swimming events and 10km running races. This was clearly in glaring contrast to the picture portrayed by the Claimant in her evidence.

Having been caught out, the Claimant admitted that her witness statement had contained a number of untruths and that she had recruited her husband and friend in supporting her dishonest account. Furthermore, the Claimant accepted that she had participated in a number of sporting events.

The Judge concluded that the Claimant had not suffered chronic pain and that she had trained for and performed in various sporting events between 2017 and 2018. In his opinion, she had deliberately taken steps to mislead the Defendant and the Court about the extent of her injuries so as to inflate the value of her claim from approximately £70,000 to over £900,000.

As a consequence, the Claimant was found to be fundamentally dishonest, and the claim was dismissed. The Claimant had been in receipt of a substantial interim payment which she may have to repay.

Given the above, it is very important that a claimant does not attempt to exaggerate their claim or be dishonest in any way.

If you think that you might have a claim for medical negligence, please contact our team and we will be pleased to help.