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Strike out for fundamental dishonesty?

The requirement for courts to dismiss personal injury claims in their entirety where claimants have been ‘fundamentally dishonest’ has divided peers.

Following the government announcement last week regarding a last minute clause to be inserted into the Criminal Justice and Courts Bill, requiring courts to dismiss personal injury claims in their entirety where claimants have been ‘fundamentally dishonest’, the recent news is that this has ‘divided peers’ amidst concerns of potential injustice.

Lord Beecham considers that the clause would be an ‘entirely one sided sanction’ as there is no penalty for a defendant who would behave in a similar fashion and cause a claimant further suffering.

Surely this is missing the point a little? The Bill aims to clamp down on the endemic culture of spurious claims for personal injury as a result of accidents (which may or may not have occurred).

Genuine claimants have nothing to fear. Defendant’s who do not act quickly to resolve genuine claims are still open to sanctions in the form of penalties for failing to beat Part 36 offers which a claimant would have been wise to put forward.

Lord Hunt raises the question “[h]ow are we to deal with a genuine injury that has nothing at all to do with the incident that has given rise to the claim?”  It seems to be a simple enough answer to say that if a claimant is bringing a claim as a result of an incident, but for injuries which are nothing at all to do with that incident, then this is in itself fundamentally dishonest. 

The voice of reason within the House seems to stem from Lord Brown. Indeed as he notes, this proposed amendment is not without its faults in terms of arguments over what actually constitutes fundamental dishonesty, but this is a necessary evil in the bid to discourage dishonest claims.

The question of what is fundamental dishonesty is not a new one in any event. The question has been ongoing since the introduction of Qualified One Way Costs Shifting (QOCS). The first decision of a court on the matter was published a few weeks ago in Gosling –v- Screwfix. 

Whether it be on the issue of costs or dismissal of a claim in its entirety, the principles of what is fundamentally dishonest are not likely to be different in each circumstance. The concerns, by those opposed to or reluctant to approve the clause, that this will lead to further satellite litigation may well be unfounded given that further litigation on this meaning in relation QOCS will already have been considered on many an occasion.

If fundamental dishonesty was a sufficient turn of phrase for Lord Jackson’s reforms then it seems that it should be sufficient for the Criminal Courts and Justice Bill.