11 January 2016
Fundamental Dishonesty in Personal Injury Claims
A grandmother making a personal injury claim was recently accused of fundamental dishonesty. What does this mean when making a claim?
Recently in the news was the case of Carol Ravenscroft who suffered injuries to her arm when she stopped an Ikea cabinet falling on her two-year-old grandson in the furniture company’s Warrington store. Her public liability compensation claim resulted in the defendant, Ikea, accusing the grandmother from Swinton of fundamental dishonesty.
A Manchester County Court judge ruled in favour of Mrs Ravenscroft, awarding £3,500 for damages. Following the two year wait for the judgment, Ikea were ordered to pay all court costs, with the judge stating: “I do not find fraud on the part of the claimant and, I stress, nor do I think the defendant’s witnesses deliberately concocted a story to thwart a plan for damages.”
What is Fundamental Dishonesty?
In their defence, Ikea accused the claimant of fundamental dishonesty, but what does that mean?
The term “fundamental dishonesty” comes from Civil Procedure Rules 44.16 and was introduced in April 2013 in the context of Qualified One-Way Costs Shifting (QOCS) one of the key changes brought in by Lord Justice Jackson’s civil litigation reforms. QOCS means that an important principle of English law, that of the “loser pays”, was cast aside. A losing claimant would no longer be liable to pay the defendant’s costs, in the event that their claim was unsuccessful.
The exception to this was if a claimant such as Mrs Ravenscroft was found to have been dishonest in the way that she presented her claim, she would have her claim thrown out and have to pay the other side’s costs.
The danger is that this potential defence is used by defendants, such as Ikea, to frighten off genuine claimants who are at the best of times worried about having to give evidence and feel intimidated by aggressive tactics on the part of unscrupulous defendants and the insurance companies who are usually acting for them.
The prospect of this is all the more real if the latest changes proposed by the Government happen in 2017. The plan then is to remove the right to recover your legal costs from defendants at all unless your claim is worth over £5,000. In Mrs Ravenscroft’s case, she would have been faced with the prospect of having to put forward her case, without the benefit of legal advice, increasing the likelihood of being put off from doing so.
Slater and Gordon senior personal injury solicitor, Michael Hardacre, said: “What this comes down to is the principle of fairness and having a level playing field. Right now, insurance companies are getting things all their own way, because they argue, wrongly, that there are too many fraudulent claims. The statistics show that this is, if anything, a tiny proportion of all claims and this new “fundamental dishonesty” defence and other changes being brought in, will have a chilling effect on the ability of genuine claimants to bring their claims and obtain much needed compensation for their injuries”.
Slater and Gordon personal injury lawyers deal with public liability claims on a No Win No Fee basis and offer a free consultation for anyone injured in a public place. We can provide you with free legal advice and tell you if your claim is likely to succeed.
Call us 24 hours a day, 7 days a week on freephone 0800 916 9046 or contact us online and we will call you.