14 May 2014Print This Post

Exaggerated symptoms see claimant lose QOCS protection in first ‘fundamental dishonesty’ decision

Brindle: stark warning

A circuit judge has ruled that a personal injury claimant who exaggerated the extent of his ongoing symptons should be denied the protection of qualified one-way costs shifting (QOCS) on the grounds that the claim was “fundamentally dishonest”.

It is thought to be the first ruling on the issue, which has excited a great deal of comment among practitioners as to how the courts would define the exception.

John Foy QC and Simon Brindle, personal injury specialists based at 9 Gough Square, acted for the defendant, instructed by BLM. Mr Brindle said the case should be seen as a “stark warning that the judiciary will be willing to make a finding that a claim is fundamentally dishonest, even if there is an element of honesty to it”.

Under the CPR, a claimant can lose the protection of QOCS if the claim is found on the balance of probabilities to be “fundamentally dishonest” or the claim is struck out.

Ruling in Gosling v Screwfix and Anr (unreported, 29 March 2014) at Cambridge County Court, HHJ Moloney QC ordered the claimant to pay the defendant’s costs of the action on an indemnity basis.

Mr Brindle went on: “Substantial exaggeration, even if ‘only’ of around 50% of the claim, can result in a finding of fundamental dishonesty being made, and expose the claimant to enforcement of any costs order made against them to the full amount.

“Such costs orders could include not only any made as a result of the exaggeration of the claim, but of the whole claim.”

Mr Brindle said the judge made the finding, not because he was satisfied that the claim in its entirety was dishonest, but because the claimant demonstrated dishonesty in relation to quantum.

“The judge was satisfied that the claimant had suffered injury in an accident and, in doing so, did not accept submissions that the claimant had been dishonest about the accident circumstances.

“However, the claimant had significantly exaggerated the extent of his ongoing symptoms – as demonstrated by covert surveillance of him, commissioned by the defendant’s insurer. The effect of the discovery of this deceit effectively was to reduce the value of his claim by half.

“The judge held that, in significantly exaggerating the extent of on-going symptoms, the claimant’s conduct was dishonest, and designed both to deceive and give a false impression.

“The judge also held that dishonesty, crucial to around half the value of a claim, was, ‘on any view’ sufficient to be characterised as fundamental. As a result, he was satisfied, on the balance of probabilities that the claim was fundamentally dishonest.”

Mr Brindle warned that applications for findings of fundamental dishonesty may become a “regular occurrence” in the future.

 

 

 

 

 

 

By Nick Hilborne

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