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Losing The Whole Of A Personal Injury Claim To New Fundamental Dishonesty Clause

Doctor wrapping a bandage around a patient's wrist
20th October 2014

Fundamental dishonesty found in any part of a personal injury claim could scupper an entire case, under two new clauses set out in legislation due to come into force in January 2015.

Parliament is currently reviewing the Criminal Justice and Courts Bill, which includes Clauses 49 to 53, which prescribes how future personal injury claims will be defeated at a hearing if any “fundamental dishonesty” can be shown.

Clause 49(1)(b) requires a court to dismiss the “whole of a personal injury claim” if it is satisfied, on the balance of probabilities, that the claimant has been fundamentally dishonest in relation to the “primary claim” or a “related claim, that is connected to any part of the claim.”

Clause 49(3) clearly indicates this “includes the dismissal of any element of the primary claim in respect of which, the claimant has been dishonest.”

“Exaggeration of symptoms”

Where fundamental dishonesty is found in an aspect of future “special damages”, an entire case -  including the “general damages” part of the claim - will be lost. Similarly, if fundamental dishonesty is shown to be the basis of an “exaggeration of symptoms” – previously known to have occurred with a number of reported fraudulent whiplash claims - the whole claim will be dismissed, including for example, the claim for a written-off vehicle caused by the other party’s negligence.

Dismissal of a claim is compulsory unless the court is satisfied “that the claimant would suffer substantial injustice if the claim were [sic] dismissed.” The court cannot find in favour of the claimant but reduce or eliminate damages, subject to the “substantial injustice” exception, as stated.

The court must record the amount of damages it would otherwise have awarded. Any costs order made against the claimant must take into account the predetermined damages, and the claimant then pays the balance of damages to the defendant. The bill applies to fixed recoverable costs cases as well as all other personal injury cases.