Fundamental Dishonesty and QOCS in Personal Injury Proceedings

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.