Giving Fair Notice Of An Allegation Of “Fundamental Dishonesty”

The battle of fundamental dishonesty claims rages on.  Ever since the courts were first asked to apply section 57 of Part 3 of the Criminal Justice and Courts Act (which applies to all claims made since 13 April 2015), claimants face the potential of having their whole claim dismissed if they are found to have been (i) fundamentally dishonest and (ii) such dismissal would not cause the claimant “substantial injustice”.  The meaning of fundamental dishonesty and in what circumstances whole claims can be struck out have formed the basis of many articles, blogs, analysis and, of course, legal challenges.  This blog does not intend to add further analysis but rather will look at one particular recent case in which the defendant attempted to ambush the claimant with an allegation of fundamental dishonest during closing submissions at trial.

Recent Cases Involving Fundamental Dishonesty

The case I am referring to is Jenkinson -v- Robertson [2022] EWHC 791 (QB).  There is nothing unusual regarding the facts of the substantive claim.  The claimant was injured in a road traffic accident.  He made a claim and the matter proceeded to trial.  During closing submissions, the defendant alleged the claimant had lied about the onset of his symptoms.  The defendant invited the court to find that the claimant had been fundamentally dishonest.  The trial judge accepted the argument and found the claimant had been fundamentally dishonest in advancing the claim.  The claimant appealed and it came before Choudhury J where the argument surrounded whether the claimant had been given adequate notice of a section 57 application.

The case of Howlett & Anor [2018] 1 WLR 948 has been the precedent on this issue since 2018.  The Court of Appeal held that the “key question in such a case would be whether the claimant had been given adequate warning of, and a proper opportunity to deal with, the possibility of such a conclusion of [fundamental dishonesty] and the matters leading the judge to it rather than whether the insurer had positively alleged fraud in its defence”.  To limit the defendant to having to plead fundamental dishonesty in their defence would cut off the opportunity to make a section 57 application later when the case had progressed.

Surveillance Footage

A common trigger point is the receipt of surveillance footage which often would be undertaken long after a defence has been served.  However, it could be as late as trial that fundamental dishonesty raises its ugly head. It is within this context that Choudhury J had to consider whether the claimant in Jenkinson had been given adequate warning.  He stated that “No general guidance can be laid down as to what would constitute adequate warning and a proper opportunity to deal, as these would depend on the circumstances of the case”.

In Jenkinson, the defendant had queried the claimant’s credibility pre-trial.  They had asserted in pre-trial correspondence that they considered the claimant’s claim was “exaggerated” and “unreasonable”.  However, no express notice had been given to the claimant in advance of trial that fundamental dishonesty would be alleged.  After receiving the correspondence, the claimant asked the defendant to specify the grounds upon which they considered his claim to be exaggerated and unreasonable.  The defendant refused to particularise the grounds on which a section 57 application might or might not be made.  Choudhury J did not consider this was adequate notice.  He held “a defendant cannot simply rely on putting the claimant to proof in order to satisfy the requirement of adequate notice; something more specific should be required so as to alert the claimant (perhaps after the evidence has emerged under cross-examination)” as to which aspects of his case were considered to be fundamentally dishonest.  Further, “nor was it expressly put to the claimant during the trial that he was being dishonest”.

Currently Case Law Supports Claimants

Claimant solicitors have seen it become fairly common practice for the defendant to make general comments relating to the claimant’s credibility presumably to seek to rely on these as sufficient warning when making a section 57 application should the evidence seem to go that way.  For now, the case law seems to be with the claimant that this is not sufficient notice.  The defendant does not pluck an allegation of fundamental dishonesty out of thin air.  Looking at it within the context of a trial, a potential allegation of fundamental dishonesty would have formed part of the defendant’s trial preparation.  There should be nothing to prevent them from “giving a claimant fair warning that if the evidence turns out a certain way, then a section 57 application might follow.” The process of disclosure is supposed to prevent trial by ambush.  The weapon that is section 57 has the potential to undermine this but for now the courts appear to be willing to protect the claimant’s position at least regarding fair and adequate notice.