There is a growing trend in personal injury claims; Defendants and Insurance Companies are reaching for fundamental dishonesty allegations more than ever, but why is this?
What started as a safeguard against fraud under section 57 of the Criminal Justice and Courts Act 2015, in many cases, has now become a tactical lever, one that is reshaping the tone of litigation in ways regulators and judges never intended.
Under section 57, if a Claimant is found to have been fundamentally dishonest, the Court must dismiss the entire claim, even if part of it is genuine. The logic does makes sense, as Courts do not want to reward fraud and dishonesty. However, the way the rule is now being used often blurs the line between fraud and fallibility.
The expending definition
So what is ‘fundamental dishonesty’? Fundamental dishonesty can range from exaggerating the severity or duration of injuries, falsely claiming loss of earnings, or deceitfully concealing relevant medical information. This is, however, not an exhaustive list, and it is vital Claimants talk open and honestly with their solicitors about the severity of their injuries.
Fundamental dishonesty isn’t defined in the statute, it has, however, been carved out through case law. As per the case of Howlett v Davies [2017] EWCA Civ 1698, it was stated that such dishonesty must go to the root of the claim, and not just a side issue.
It is important to note that an insurer is fully within their rights to obtain surveillance footage, at any time, if they have doubts in relation to a Claimant’s claim and the symptoms they are purporting. This may entail a deep dive into the Claimant’s social media presence.
Cases like Patel v Arriva [2019] EWHC 1216 confirm that even serious injury claims can be struck out if a Claimant is dishonest about key facts. In the case of Basir v Larizadeh (2019), the Court went further, holding that the entire claim falls if dishonesty is found, not just the dishonest part.
In contrast, some recent decisions have shown some pushback. For example, in Elgamal v Westminster City Council [2021] EWHC 2510, the Claimant had been filmed walking more easily than his witness evidence suggested. The High Court however refused to find fundamental dishonesty, stressing that exaggeration isn’t automatically deceit.
The reality is, memory slips, pain fluctuates, and poor communication does not necessarily make someone fundamentally dishonest.
Why are we seeing more of it?
The short answer? Pressure.
Insurance providers are under strain from rising claim costs, Defendant solicitors are under instruction to challenge credibility at every turn, and judges are wary of public perception, wanting to deter abuse and dishonesty.
There is however real danger here. The concept is powerful, but perhaps too powerful. The ‘fundamental dishonesty card’ is increasingly being used as a threat rather than a genuine allegation. For many Claimants, the mere mention of fundamental dishonesty is enough to sow fear and push for an early, undervalued settlement.
The brutality is, there are no consequences or implications for a Defendant who makes an unsubstantiated allegation of fraud against Claimants.
The ‘real world’ impact
For honest Claimants, it’s impact can and may be brutal. A small inconsistency or an optimistic schedule of loss can suddenly become the focus of an entire defence. A finding of dishonesty doesn’t just end the case; it strips away QOCS protection and exposes Claimants to the other side’s costs.
The Association of Personal Injury Lawyers (APIL) recently warned that this trend risks deterring genuine claims. That is not just bad for the injured Claimants, but it undermines the balance of the legal system. Yes, the law should deter fraud, but it should not punish imperfection. There is a real distinction to be made here.
Keeping perspective
Of course, dishonesty does exist, and the Courts are right to deal firmly with it. However, context matters. The difference between a fraudulent claim and a flawed one is often nuance, and nuance is exactly what’s being lost when fundamental dishonesty is raised as a routine defence line.
Claimant solicitors now need to be more meticulous than ever. That means keeping claims tight and accurate, disclosing anything and everything that could later be twisted into inconsistency, and preparing clients for credibility challenges.
Once the words “fundamental dishonesty” appear in a defence argument, the tone of the case changes completely.
Where do we go from here?
This law was designed as a shield, not a sword. It’s right that dishonesty is punished, but equally, Defendants and/or their solicitors must show restraint. As the case of Elgamal reminds us, the Courts can distinguish between human error and deceit. We therefore should encourage that balance, not erode it.
As the volume of these allegations continues to rise, Claimant solicitors need to push back calmly, intelligently, and importantly, with evidence. The law does not exist to terrify the injured, it exists to deliver justice, and justice starts with fairness on both sides.
Perhaps the real question is, when there are no repercussions for an unsubstantiated allegation of fraud, are we protecting the system from fraud, or are protecting the Defendants from risk? When those lines blur, justice quietly takes the hit.
How can we help?
By working with Ramsdens Solicitors’ specialist Personal Injury and Clinical/Medical Negligence solicitors, Claimants can proceed with confidence knowing that their case is grounded in clear, credible evidence; strengthening prospects of success and protection against potential adverse costs.
Find out more about how our Personal Injury and Clinical/Medical Negligence teams can help, or contact us today by calling 0800 804 7450 or email [email protected].
