Fundamental Dishonesty and QOCS in Personal Injury Proceedings: Law and Practice - Second Edition

Since publication of the first edition of this book, the law has continued to develop at pace, particularly in relation to the operation of s. 57 of the 2015 Act. How s. 57 of the 2015 Act works in practice; what the Court is actually required to dismiss where s. 57 is satisfied; and the meaning of ‘substantial injustice’, have all been explored and explained by the Courts. Other issues have arisen and been argued before the Judges, including: what the Court should do in relation to the costs of a spilt trial where liability is resolved in the Claimant’s favour, but dishonesty is alleged in relation to quantum; and how allegations of ‘fundamental dishonesty’ interact with Court’s jurisdiction to award an interim payment. In the costs arena, the introduction of the Intermediate Track and the attendant wholesale rewriting of the fixed costs Rules have required practitioners to familiarise themselves with new procedural routes to assessing their enforceable costs orders, and the Court of Appeal has given guidance on the likely basis of costs assessment where allegations of ‘fundamental dishonesty’ are pursued unsuccessfully. There continue to be important issues which are not entirely resolved (notably including precisely what the Court can/must take into account when considering whether a Claimant has established ‘substantial injustice’ within the meaning of s. 57 of the 2015 Act). This book is written with both legal practitioners (Claimant and Defendant) and insurers in mind. In order to consider and analyse the law in this vitally important area, as well as provide insight and commentary from a practical perspective, this book specifically considers a broad array of important issues including: The meanings of ‘dishonesty’ and ‘fundamental’ as explained in the case law, together with a synthesis of the main points that can be taken from the authorities; The approach to pleading allegations of ‘fundamental dishonesty’ and applying to amend to positively advance such allegations; The issue of giving adequate notice of an intention to seek a finding of ‘fundamental dishonesty’; How to conduct the case at trial where findings of dishonesty are to be sought; What the effect of abandoning potentially dishonest elements of a claim is likely to be; The origins of s. 57 of the 2015 Act; the statutory text of the section; and preliminary observations on the wording of the provision; The decision in London Organising Committee of the Olympic & Paralympic Games (in liquidation) v Haydn Sinfield and other later relevant authorities considering s. 57 of the 2015 Act; The meaning of ‘substantial injustice’; What the Court is actually required to dismiss where s. 57 of the 2015 Act is satisfied; The timing of an application pursuant to s. 57 of the 2015 Act; How to value the ‘genuine’ element of a dishonest claim; The interplay between allegations of dishonesty and requests for an interim payment; The relevant Civil Procedure Rules governing QOCS and ‘fundamental dishonesty’; The circumstances in which a Court can be invited to make a finding of ‘fundamental dishonesty’; The Court’s approach to dealing with an invitation to make findings of ‘fundamental dishonesty’ after the Claimant has discontinued; Applications to set aside a Claimant’s Notice of Discontinuance; Practice points relating to seeking a finding of ‘fundamental dishonesty’ post-discontinuance; The relevant Civil Procedure Rules concerning the assessment of costs where dishonesty is proved; The basis of costs assessment where allegations of ‘fundamental dishonesty’ have been unsuccessfully pursued at trial’ The Court’s likely approach to costs in a split trial where the Claimant has been successful on liability but the Defendant alleges ‘fundamental dishonesty’ in relation to quantum.