Fundamental Dishonesty: Stopping the Wrecking Ball Before it Swings

I came in like a wrecking ball! 

Here it comes, the dreaded two words that injury specialists across the UK hear so often:  “Fundamental Dishonesty” or often shortened to “FD”. Yes, those two famous words are not words which ought to be ignored, and yet we see often those two words sneak in and be used by Defendants. 

Defendants are increasingly taking a robust stand against dishonest claims, and I have seen an increase in Defendants arguing fundamental dishonesty in fast-track trials. Those two words are certainly capable of causing the human heart to sink into the stomach and are capable of wrecking a case very quickly!  

The effects of the Claimant being found to be fundamentally dishonesty can be severe and disheartening for the Claimant's solicitor who will probably receive a complaint and a poor review. 

It is section 57 of the Criminal Justice and Court Act 2015 which gives the court a discretion to dismiss claims in their entirety where there is a finding of fundamental dishonesty. 

If an individual is found to be fundamentally dishonest, the consequences can be severe. Their entire claim can be struck out and, if 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 relying upon any after the event insurance.  This certainly can be a very expensive day out for the Claimant at court! 

Not only that, but depending on the circumstances the court also has a discretion to refer the matter to the CPS to investigate for a criminal charge of contempt of court which, if it is found, may lead the person to a prison sentence. This can be extremely damning for the Claimant. 

This is exactly what occurred in Wye Valley NHS Trust v Murphy [2024] EWHC 1912 (KB). Here, the consequences for the Claimant were that he was found to be in contempt of court for exaggerating the extent of his injuries. The Defendant found various social media posts to use against the Claimant. The evidence against the Claimant was damning. 

Remember that the burden is on the Defendant to establish dishonesty, and the test is laid out in the case of Ivey-v- Genting Casinos limited [2018] A. C. 391 at [74]. There are steps that Claimant solicitors can take to prevent those two famous words being seen or heard before we enter the court room. 

Here is my magic list: 

1. Vet the client at the outset 
    
2. Is there a language barrier? If so, ensure documents are translated and in the Claimant's own language. Ensure nothing is misinterpreted. 
   
   
3. Ensure that the claim form and that the particulars of claim are drafted accurately. Ensure the claimant reads through them and checks that the information is accurate before signing them. 
   
   
4. Obtain the GP records first, before instructing the medical expert. Review those records in full, and if there are entries which are concerning or need clarifying, obtain clarification from the Claimant. 
   
   
5. Ensure the medical expert has the full set of the medical records, and if not, obtain all records. This means obtaining physio records, MRI scans, hospital records, and X-rays. 
   
   
6. If you can obtain evidence early on, before you issue proceedings, then obtain it. Obtain CCTV footage and witness statements from possible witnesses. 
   
   
7. Review the Defence with the client. If fundamental dishonesty is raised at this stage then review prospects and the strengthens and weaknesses of this allegation in light of the evidence before you. Obtain your client's full instructions on this and advise them fully on fundamental dishonesty. 
   
   
8.  Draft a detailed witness statement providing as much information as possible. No more pro forma statements! The statement should address the issues raised by the Defendant with exhibits containing supportive evidence. 

I hope this article is useful and I hope together we can tackle the wrecking ball and prevent it from destroying a claim.