Fundamental Dishonesty and QOCS in Personal Injury Proceedings 2nd ed

Dishonest personal injury claims have long been, and remain, a well-recognised and extensive problem. Allegations of ‘fundamental dishonesty’ are, almost certainly, as prevalent as ever. It is no exaggeration to say that every practitioner involved in personal injury litigation must possess a comprehensive and up to date understanding of the law relating to ‘fundamental dishonesty’: first, as it relates to s. 57 of the Criminal Justice and Courts Act 2015 and secondly, in relation to the exception it provides to the Qualified One-Way Costs Shifting (“QOCS”) regime. It is simply not possible to carry on practice in this area of law without an intimate working knowledge of these principles and how they apply in real terms.

Since the first edition of this work was published in 2020 the law has continued to develop at pace, particularly in relation to the operation of s. 57 of the 2015 Act. How s. 57 of the 2015 Act works in practice; what the Court is actually required to dismiss where s. 57 is satisfied; and the meaning of ‘substantial injustice’, have all been explored and explained by the Courts. Other interesting and novel issues have arisen and been argued before the Judges, including: what the Court should do in relation to the costs of a spilt trial where liability is resolved in the Claimant’s favour, but dishonesty is alleged in relation to quantum; and how allegations of ‘fundamental dishonesty’ interact with Court’s jurisdiction to award an interim payment. In the costs arena, the introduction of the Intermediate Track and the attendant wholesale rewriting of the fixed costs Rules have required practitioners to familiarise themselves with new procedural routes to assessing their enforceable costs orders, and the Court of Appeal has given guidance on the likely basis of costs assessment where allegations of ‘fundamental dishonesty’ are pursued unsuccessfully.

Practitioners are increasingly familiar with the issues surrounding these important legal topics. However, to consider the law in this area as completely settled would be a mistake. There continue to be important issues which are not entirely resolved (notably including precisely what the Court can/must take into account when considering whether a Claimant has established ‘substantial injustice’ within the meaning of s. 57 of the 2015 Act) and as the interceding five years since the first edition of this work was published have shown, there always remain other novel points which are still yet to be identified but will ultimately end up being argued before the Courts as the precise limits of the jurisprudence relating to ‘fundamental dishonesty’ are tested and its interaction with other areas of civil practice explored.

There has never been a better time to take stock on where the law on ‘fundamental dishonesty’ is right now.

• The meanings of ‘dishonesty’ and ‘fundamental’ as explained in the case law, together with a synthesis of the main points that can be taken from the authorities;
• The approach to pleading allegations of ‘fundamental dishonesty’ and applying to amend to positively advance such allegations;
• The issue of giving adequate notice of an intention to seek a finding of ‘fundamental dishonesty’
• How to conduct the case at trial where findings of dishonesty are to be sought
• What the effect of abandoning potentially dishonest elements of a claim is likely to be
• The origins of s. 57 of the 2015 Act; the statutory text of the section; and preliminary observations on the wording of the provision
• The decision in London Organising Committee of the Olympic & Paralympic Games (in liquidation) v Haydn Sinfield and other later relevant authorities considering s. 57 of the 2015 Act
• The meaning of ‘substantial injustice’
• What the Court is actually required to dismiss where s. 57 of the 2015 Act is satisfied
• The timing of an application pursuant to s. 57 of the 2015 Act
• How to value the ‘genuine’ element of a dishonest claim
• The interplay between allegations of dishonesty and requests for an interim payment
• The relevant Civil Procedure Rules governing QOCS and ‘fundamental dishonesty’
• The circumstances in which a Court can be invited to make a finding of ‘fundamental dishonesty’
• The Court’s approach to dealing with an invitation to make findings of ‘fundamental dishonesty’ after the Claimant has discontinued
• Applications to set aside a Claimant’s Notice of Discontinuance
• Practice points relating to seeking a finding of ‘fundamental dishonesty’ post-discontinuance
• The relevant Civil Procedure Rules concerning the assessment of costs where dishonesty is proved
• The basis of costs assessment where allegations of ‘fundamental dishonesty’ have been unsuccessfully pursued at trial’
• The Court’s likely approach to costs in a split trial where the Claimant has been successful on liability but the Defendant alleges ‘fundamental dishonesty’ in relation to quantum