How does honesty (or lack of it) affect an injury claim?

The issue of fundamental dishonesty continues to be raised in personal injury and clinical negligence claims.  Increasingly we see defendant insurers and the NHS seeking to try to establish some dishonesty to either achieve the dismissal of the claim altogether or to secure the recovery of some costs.  This provision is known as section 57 of the Criminal Justice and Courts Act 2015 (“S57”).

Although an explanation of fundamental dishonesty is set out in the statute it is a movable feast in case law.  As more defendants seek to raise the issue, so cases become more varied.  Each case is very much decided on its own merits but there are some common themes. The consequences can vary from costs and compensation penalties to imprisonment.

It is well known now that claimants’ solicitors should always advise clients of the possibility that the defendants may review or seek access to their social media posts, particularly where there are allegations of illnesses on holiday.  In the case of Lactatemia Shipping Company Limited v Sue & Others, the claimant allegedly fell ill on holiday due to food and/or drink consumed at a hotel.  This illness apparently was so severe as to ruin their holiday.  Once home, a claim was commenced.  The defence was supported by social media posts which included favourable comments about the hotel and the overall experience. It seemed to undermine the entire case. The claimants therefore discontinued the claim. The claimants were found to be fundamentally dishonest.  The claim of course had been discontinued but there was an application for costs.  There were some issues as to the solicitor’s role. It didn’t appear that checks on the client’s social media (which is a particular feature of travel sickness claims) had been undertaken and some documents appear to have been hidden or deleted.  An application for costs ultimately cost £37,000.

A recently reported case in the national newspapers of N K  v Hull NHS Trust indicated  problems in  a claim valued at £7.3 million. The claimant alleged significant mobility issues. The defendant relied on the fact that the claimant was taking a performing arts degree and there were surveillance video and social media posts on her feed indicating that she was moving without difficulty.

In the case of A P recently the claimant alleged mobility issues whilst his Twitter account presented an overall impression of his running fitness and timings.  He was subject to surveillance evidence, and he was found to be fundamentally dishonest.  All damages to which he was entitled were set off against the liability to pay the defendant’s costs.

However not all dishonesty is equally important in determining whether a claimant is deemed to be fundamentally dishonest, a fact which is not always considered by defendants who seek to extend the ways in which this can be relied upon.

S 57 indicates that the claim is deemed to be fundamentally dishonest if the dishonesty goes to the root of either the whole claim or a substantial part of it.  The court considers there is a public interest in identifying false claims and a claimant can be found to be fundamentally dishonest if they have acted dishonestly and this has substantially affected the presentation of the case.   It does, however, have to be relevant to the issues in the case.

In a case that bucks the trend to find claimants fundamentally dishonest, in Cojanu v Essex Partnership University NHS Trust [2022] the trial judge’s findings of fundamental dishonesty were overturned on appeal.  The claimant had been the perpetrator of a crime which resulted in an injury which was negligently managed. He lied about the cause of his injuries and denied the crime. It appeared that the claimant had not been honest about how the injuries had arisen.

However, the appeal judge considered that the mechanism by which he received the injuries was irrelevant to the success in the clinical negligence claim.   He did not need to prove how he had become injured.

It was accepted that initially the claimant did not say anything about how the injuries arose and at a later time he lied about it to the court.  He was certainly being dishonest in relation to his crime.  However, the mechanism by which his finger was injured was not relevant to the negligence.

It was not the case that the claimant’s credibility was irrelevant – it most certainly was.  However, his dishonesty on that specific issue was not relevant to the evidence in a civil claim.  It did not affect the liability part of the trial because liability had been determined on expert evidence and no criticism could be made of that.

In overturning the judgement the judge made the following comments:-

“First all citizens are equally entitled to come before the court in civil claims.  Those with a long list of previous convictions and those without.  Some will have better creditability than others but this is not a credibility barrier… barring those with previous convictions from bringing civil actions.  ….. negligent defendants must take their victims as they find them and not all victims are angels. … the primary rationale for Section 57 is to stamp out fraudulent and dishonest claims not to bar unrepentant criminals from civil law.”

In short, this case confirms that the fundamental dishonesty has to be pertinent to the issues in the case, the presentation of the case and the value of the claim.  If it is not, the credibility of the claimant may still be affected.  It does not necessarily mean however that they have been fundamentally dishonest in relation to their civil claims.

The reality is that all claims where fundamental dishonesty is finally alleged, will be judged on their own merits, being the circumstances of the case and the claimant’s account.  Solicitors can be held liable if they have not completed proper checks on their clients but ultimately for claimants this can be a very costly exercise if they are found to be fundamentally dishonest.  The increase in allegations of fundamental dishonesty is significant anecdotally.  Certainly, as a clinical negligence practitioner I am more aware of the possibility than previously.

All claimants should be advised of these issues at the start of a claim and on an ongoing basis.   In truth it is a tiny number of claimants who knowingly do not present an accurate view. However, there is a continued attempt by defendants to aggressively pursue these issues and to extend the number of cases and circumstances by which people can be deemed to be fundamentally dishonest.  Claimants and their lawyers have been warned.