Fundamental dishonesty – the implications of dishonesty in injury litigation

The term ‘fundamental dishonesty’ is one which is regularly thrown around when it comes to injury claim litigation. Indeed, it is something that injury specialists are familiar with and may have to deal with. It is therefore important specialists understand the current law in this area.

So, what does it mean to be dishonest in a personal injury claim?

The most common examples of dishonesty in injury claims arise when an injured party has either lied about the cause of their injuries, or, even if they have been involved in an accident that wasn’t their fault, or treatment that went wrong, and an injury has been sustained, they exaggerate about the nature and extent of their injuries and/or financial losses which they allege arise from the injuries sustained.

Legal framework

The legal framework surrounding ‘fundamental dishonesty’ is well established.

Pursuant to Section 57 of the Criminal Justice and Courts Act 2015, the Court has a statutory discretion to dismiss claims in their entirety which, where the Court makes a finding of fundamental dishonesty.

Since this legislation was introduced, various cases have looked at what the term ‘fundamental dishonesty’ actually means. As the law currently stands, a definition can be provided as follows: –

• Fundamental – Something which goes to the root of either the whole of the claim or a substantial part of it.
• Dishonesty – Any conduct which, in the context of the Claimant’s state of mind at the time of any purported dishonesty, would objectively be deemed by an ordinary person to be dishonest.

If an individual is found to be fundamentally dishonest, the consequences can be severe. Their entire claim can be, struck out by the Court. It that happens, they will be ordered to pay either all or part of their opponent’s legal costs for defending the claim and without the benefit of any after the event insurance, which will have been invalidated by the finding of fundamental dishonesty. Depending on the circumstances the Court also has the discretion to refer to the Crown Prosecution service to investigate for a criminal charge of Contempt of Court, which if found can lead to a prison sentence.

The issue of fundamental dishonesty came to the fore recently in the case of Wye Valley NHS Trust v Murphy [2024] EWHC 1912 (KB)

The claim involved a Mr Murphy who pursued a clinical negligence claim against Wye Valley NHS Trust arising from treatment he received following a rupture to his left bicep which he had suffered in a rugby match in March 2017.

During the lifetime of the claim, the Defendant alleged that Mr Murphy’s conduct was fundamentally dishonest. In particular, it was alleged that he had provided false information to the medical experts instructed by the parties regarding the function and strength in his left arm, his ability to work, and his ability to play rugby. It was also alleged that he had made false statements in Court documents, including the Particulars of Claim and a Preliminary Schedule of Loss, which he had verified with a formal statement of truth.

In July 2023, Mr Justice Mould found for the Defendant in their application to dismiss the claim based on fundamental dishonesty and found Mr Murphy to be in contempt of Court for exaggerating the extent of his injuries.

Some of the key pieces of evidence in support of the application were excerpts from social media, which contravened Mr Murphy’s contentions to various medical experts that he had not picked up a rugby ball since the incident, nor been able to return to any form of work. Indeed, social media posts by local rugby team, Ross RFC, had recorded Mr Murphy as being picked to play for the Ross 2nds in rugby games on at least 5 occasions throughout 2019. Furthermore, posts from Facebook revealed that Mr Murphy had in fact returned to his heavy manual occupation throughout 2018.

Ultimately, the evidence against Mr Murphy was damning, and Mr Justice Mould ordered his claim struck out for contempt of Court. He was subsequently ordered to repay an interim payment which had been paid earlier in the case, and to pay the Defendant’s costs

There is a wealth of case law in recent years where the Courts have ebbed and flowed on the issue of fundamental dishonesty, but ultimately, whilst Defendant’s and their insurers may look at whether fundamental dishonesty can be advanced in a claim, it is worth pointing out that whilst the cases that are reported are noteworthy because of the actions of the Claimant, the vast majority of injured individuals would not contemplate exaggerating or lying about their injuries; they are genuine and honest people who have been through some of the worst moments of their life and deserve access to legal support and compensation.