There are frightening times ahead. By virtue of Sections 57 to 61 of the Criminal Justice and Courts Act 2015, the whole of a personal injury claim can be dismissed if “the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim.”
This means that a finding of ‘fundamental dishonesty’ (ie an untruth) in relation to only one aspect of a claim, perhaps a minor exaggeration by the Claimant as to the extent of their limitations, will lead to the whole claim being lost. Dismissal of the whole claim is mandatory unless the court is satisfied “that the Claimant would suffer substantial injustice if the claim were dismissed.”
Totally draconian though that seems, it may at first glance have the appearance of being a simple and straightforward rule – any untruth on the part of the Claimant, even if relatively minor, may lead to the loss of the whole claim and possibly costs sanctions as well.
However, this piece of legislation is a master class in poor statutory drafting. In particular, neither ‘fundamental dishonesty’ or ‘substantial injustice’ are defined by the Act. Accordingly, expect a vast amount of satellite litigation to cause mayhem as the courts struggle to define these terms.
Gauging where to pitch these definitions is fraught with difficulty for the court, not least because there are potentially substantial human rights issues involved. There is also a significant public policy argument. If the claim of an incapacitated Claimant is dismissed for minor exaggeration, the fact is that they remain incapacitated. Yet they no longer have redress for their future financial needs against the person who injured them. Rather, the taxpayer is left picking up the bill through the benefits system.