As an After the Event (ATE) Insurer one might expect us to see a higher number of claims in which fundamental dishonesty has been alleged, or intimated in every other way by a Defendant without them actually stating "fundamental dishonesty”.
We tend to see claims on conclusion, after the court has been able to review the evidence and make any findings that they see fit so perhaps we do see things from that sharp end. And for us, hindsight is a wonderful thing when looking at claims that may have failed.
But the issue of "fundamental dishonesty” is not going to go away anytime soon. This week one well known Defendant practice has claimed to have secured their 500th finding in just six years after a Claimant had exaggerated her injuries totally out of proportion to the low speed of the collision and lack of damage to the vehicles involved. A typical "small bump” that happens every day of the week, yet can render an occupant in severe pain and discomfort for some months.
Just this week comes a report of a Claimant losing their entitlement to any damages even though the court had found in their favour on primary liability. The Claimant, held to be 40% contributory negligent, was found to have been fundamentally dishonest in painting an ‘egregiously untrue picture’ of his disabilities after the Defendant had applied to dismiss the claim before it even reached an assessment on quantum.
HHJ Clarke, sitting in the High Court and having had the benefit of surveillance evidence expert opinion (also following review of that evidence) held that the Claimant’s disability was feigned. HHJ Clarke found the Claimant to have been fundamentally dishonest and dismissed the entirety of the claim pursuant to s57 of the Criminal Justice Act 2015.
It is not always the case that Defendants will formally state that they believe a Claimant has been fundamentally dishonest when bringing their claim. More often this is implied by the content of the Defence served although a Defendant may well "firm up” their stance with the benefit of further evidence.
It does not take a genius to realise that in most claims for ongoing injuries following a "small bump”, in particular where the damage to either vehicle is minimal, that a Defendant will view the claim with a large dollop of suspicion. I say that having sat on that side of the fence for several years. Surveillance evidence can be a great tool in such claims when evidence can be obtained that seriously undermines the Claimant’s case and credibility.
Some firms will choose to weed out these claims as early as possible, but are others "taking a punt” on them in the hope that a Defendant will make an early offer for the claim to go away? It would seem that way.
The risks must of course be explained to the Claimant if such claims are pursued to trial as few insurers will meet the Defendant’s costs if the claim is dismissed due to dishonesty of the Claimant.
Is it worth taking that risk?