Fundamental Dishonesty and QOCS in Personal Injury Proceedings: Law and Practice

Dishonest claims and dishonest claimants (or at least allegedly dishonest claims and claimants) are by no means a novel phenomenon in personal injury claims; nor is the insurance industry’s desire to identify and expose such claims and such individuals. However, the legal framework surrounding allegations of dishonesty, the frequency with which they are made, and (at least in part) the reasoning and impetus behind making them, has taken on a different complexion following the introduction of the concept of ‘fundamental dishonesty’ into personal injury litigation. It is no exaggeration to say that for every practitioner involved in personal injury claims, a comprehensive understanding of the notion of ‘fundamental dishonesty’, both as it relates to Qualified One Way Costs Shifting (“QOCS”) and as it relates to s. 57 of the Criminal Justice and Courts Act 2015, is absolutely essential. It is simply not possible to carry on practice in this area of the law without an intimate working knowledge of these principles and how they apply in real terms. Since ‘fundamental dishonesty’ first arrived on the scene on the 1st April 2013 as an exception to the QOCS regime, the concept has continued to develop and expand in its reach and application. Most importantly the term has been adopted within s. 57 of the Criminal Justice and Courts Act 2015; a significant piece of legislation representing a fundamental change to the law as it stood following the Supreme Court’s decision in Summers v Fairclough Homes. Written with both claimant and defendant practitioners in mind, this book seeks to consider what it actually means to be ‘fundamentally dishonest’; to identify the relevant Civil Procedure Rules in play; to look at the costs consequences of a finding of ‘fundamental dishonesty’; to trace the origins of s. 57 and consider the wording and effect of the statutory provision; to discuss the principles expounded in the most relevant cases; to analyse the procedures and processes to be adopted when making or defending allegations of ‘fundamental dishonesty’, including how and when an application for a finding can and should be made; and to provide helpful insight and commentary from a practical perspective. ABOUT THE AUTHOR Jake Rowley is a barrister at Farrar’s Building specialising in high value personal injury litigation. His experience spans the full spectrum of such claims including those arising from road traffic accidents; employer’s liability; public liability; and occupier’s liability claims. His clients include private individuals, local authorities, major UK insurance companies, well-known national and international commercial entities, and National Governments. Jake has a particular interest in, and significant experience of, cases involving allegations of fraud and/or fundamental dishonesty. A substantial proportion of Jake’s caseload involves accusations of dishonesty including, allegedly fabricated accidents; staged or induced collisions; phantom passenger/occupancy cases; low-velocity impacts; ‘late presentation’ claims; malingering; and fabricated or exaggerated injuries. Jake brings a meticulous and forensic approach to his consideration of the evidence and prides himself on conducting thorough and robust cross-examinations at trial. Jake is regularly invited to speak or provide training on the law and practice relating to fundamental dishonesty to both solicitors and insurers. CONTENTS Section (I) Legal Definitions Section (II) CPR r. 44.16(1) – The Costs Issue Section (III) Seeking a Finding Pursuant to CPR r. 44.16 Section (IV) Applicable Costs Assessment Provisions Section (V) Section 57 of the Criminal Justice and Courts Act 2015 Section (VI) Conclusion