QOCS disapplied in rare ‘fundamental dishonesty’ ruling

Gabriel Fay

Fay: fundamental dishonesty “goes to the heart” of a claim

National firm DWF has secured one of the first ‘fundamental dishonesty’ rulings, denying a claimant the protection of qualified one-way costs shifting (QOCS).

Chartered legal executive Gabriel Fay, based at DWF’s London office, said the claim was brought by a security guard who fractured his shoulder.

Mr Fay said his client, Severn Valley Railway, had hired an ice rink to entertain families at its station in Worcester while the track was closed. He said the claimant, Brian Creech, sued for negligence on the grounds that he had tripped on matting left behind after the rink had been removed.

However, during the trial at Telford County Court last month, District Judge Rodgers accepted the railway’s evidence that the ice rink was still on the concourse at the time the accident was meant to have happened.

“The judge made a finding of fact that the rink had not been dismantled,” Mr Fay said. “This meant that the claimant could not have been truthful.

“Our counsel argued that this was a case where there could be no mistake, and the claimant could not have believed in the evidence being presented. The judge agreed.”

Mr Fay said the accident in Creech v Severn Valley Railway (unreported, 25 March 2015) occurred in 2011 and proceedings were issued three years later, just before the limitation period expired.

District Judge Rodgers dismissed Mr Creech’s claim, and applying the fundamental dishonesty rule, ordered him to pay over £11,000 in costs. “Fundamental dishonesty is dishonesty that goes to the heart of a claim – it can’t be an ancillary matter,” Mr Fay said.

“The court did not say it had to be specifically pleaded, and was happy to use its discretion, based on the findings of fact from the trial.”

He distinguished Creech from an earlier ruling on fundamental dishonesty in Gosling v Screwfix and Anr (unreported, 29 March 2014) at Cambridge County Court, where the claim had been discontinued.

Mr Fay added that the lack of rulings on the issue could be a result of the nervousness of lawyers in arguing it, or from cases being discontinued and not reported.

In a further case last October, insurer Admiral secured the removal of QOCS in a whiplash case where its customer claimed there was no contact between the two vehicles.

District Judge Dudley ruled that the claimant had been “fundamentally dishonest” in evidence given during a trial at Southend County Court.


    Readers Comments

  • This article suggests the case concerned was one of the first dismissals on the basis of ‘fundamental dishonesty’ (FD), which is not so. It also implies that such decisions are quite rare , which is also not the case.
    At Horwich Farrelly we are now regularly securing findings of FD at trial for our clients which have resulted in dismissal of the claims concerned and enforceable costs orders to their benefit. This includes the well-publicised case of Andrew Fish vs Patrick Hillman details of which were first reported last October. Whilst we wouldn’t be so bold as to claim this was the first FD decision secured it does pre-date the above by many months. Since that time we have secured 30 fundamental dishonesty decisions for our clients and in most cases fraud was not pleaded. Additionally we have secured numerous enforceable cost orders under CPR Part 44.15.

  • Rod Dutton says:

    Tony, given that you should plead dishonesty what happened in that ‘majority of cases’? Did the claimant just fall apart on the evidence in court? how did the court typically approach the issue of failure to plead?

  • A friend says:

    a good result no doubt however this surely can be appealed, fundamental dishonesty applies to cases issued after April 2015, in addition, the rules clearly state the Court must find the claimant is entitled to damages. in this case the Court clearly didn’t agree with that (and liability was not established). I would recommend appealing as the Solicitor QOCS should apply

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