Changes to dishonesty claims legislation
The new Criminal Justice and Courts Bill is expected to become law by January 2015. Included in the bill are clauses which grant Courts the power to strike out personal injury cases on the basis of fundamental dishonesty on the part of the Claimant.
If a Claimant is found to have been fundamentally dishonest, on the balance of probabilities, by the Court , Clause 49(1)(b) of the Bill would require that the case be thrown out. Fundamental dishonesty can relate aspects including where a Claimant has exaggerated their symptoms, resulting in the award of higher special damages to cover the cost of expected future care.
The concepts of fundamental dishonesty, introduced in the 2013 Jackson reforms, and the related concept of substantial injustice, are not explicitly defined in the new legislation.
The new law imposes an increased risk on firms acting for Claimants. In matters where proving liability was not at issue, such as claiming on behalf of passengers injured in a car accident, such claims can now be lost if the Court is satisfied that the Claimant has been fundamentally dishonest.
Where the line between, for example, mild exaggeration of symptoms and fundamental dishonesty, will be drawn will be decided by the Courts.
The Bill makes it clear that the requirement to throw out such cases applies to 'the dismissal of any element of the primary claim in respect of which the Claimant has been dishonest'.
The Court must dismiss such claims unless 'substantial injustice' would be suffered by the Claimant. The Court cannot find in favour of the Claimant but is empowered to reduce damages subject to this clause.
The Bill applies to all personal injury cases, including those related to fixed recoverable costs and is intended to reduce the burden on the Courts to process dishonest claims, freeing up Court resources to prioritise fair personal injury claims.