Fundamental dishonesty in personal injury claims

Prior to the enactment of the Criminal Justice and Courts Act 2015 (CJCA), the English courts had discretion to dismiss a claim in cases of dishonesty but would only do so in very exceptional circumstances and would generally still award the claimant compensation in relation to the ‘genuine’ element of the claim.

The CJCA was intended to redress the balance so that those who behaved in a fundamentally dishonest way by grossly exaggerating their own claim should be prevented from benefitting from their deceit by recovering compensation. The legislation was intended to strengthen the law so that dismissal of the entire claim should become the norm in such cases.

This article summarises the relevant provisions of the CJCA, considers their scope and effect, and highlights some recent authorities dealing with fundamental dishonesty in personal injury claims to illustrate the approach that the English courts have taken.

The law

S.57 CJCA deals with cases of fundamental dishonesty in personal injury claims.

In essence, under ss1 and 2:

• Where the Court finds that a claimant is entitled to damages in respect of its personal injury claim; but

• Also concludes, on the balance of probabilities, that the claimant has been fundamentally dishonest in relation to its personal injury claim, or a related claim; then

• The Court must dismiss that personal injury claim; unless

• It is satisfied that to do so would result in substantial injustice to the claimant.

The burden of proof is on the defendant to establish fundamental dishonesty to the civil standard.

S.57(5) provides that when assessing costs, the Court must deduct the damages that would have been awarded but for the dishonesty, from the amount which it orders the claimant to pay in respect of the defendant’s costs.

However, s.57 does not provide an express definition of fundamental dishonesty for these purposes, nor indeed as to what would constitute substantial injustice. As tends to be the case with such legislation, this was left to the courts to clarify and determine in the case-law.

Fundamental dishonesty

As highlighted at the Committee stage of the Criminal Justice and Courts Bill when it was passing through the House of Lords, English civil courts do not make findings of dishonesty lightly. Clear evidence is required. The sanction of denying compensation to a claimant who would otherwise be entitled to it is a serious one and will only be imposed where the dishonesty is fundamental, in other words where “it goes to the heart of the claim.”

In 2017, the UK Supreme Court usefully set out the test for establishing fundamental dishonesty in Ivey -v- Genting Casinos (UK) Ltd [2017] UKSC 67 as follows:

1. Subjectively, considering the actual genuine state of the individual’s knowledge or belief as to the facts; and, once this is established

2. Objectively, considering whether the conduct was honest or dishonest by the standards of ordinary decent people.  

Significantly, there is no requirement that the claimant must appreciate that what he has done is, by the objective standard, dishonest.

How have the courts interpreted and applied the test? The following cases are some examples:

In Howlett -v- Davies [2017] EWCA Civ 1698, the Court of Appeal stated that the dishonesty must go to the root of either the whole of the claim or a substantial part of it.

In Cojanu -v Essex Partnership University NHS Trust [2022] EWHC 197 (QB), the claimant was dishonest about the circumstances of his original injury. This resulted in his medical treatment being delayed and as a result it was negligent. The Court, however, found the dishonesty to be irrelevant to the clinical negligence claim.

In Mustard -v- Flower [2021] EWHC 846, the Court held that conscious exaggeration amounted to fundamental dishonesty. That was a road traffic accident case, and the claimant was found to have consciously exaggerated the nature and/or consequences of her symptoms and losses.

In Boyd -v- Hughes [2025] EWHC 435 (KB), the claimant suffered injury to her elbow when she fell off a horse in the course of her employment. The Court found she had deliberately exaggerated and overplayed her symptoms to the medical experts on both sides. She had not given an accurate picture on a number of issues, including her ability to carry out personal care and household chores. Nonetheless, the Court found that the dishonest exaggeration was not fundamental to her primary claim as it would not have had any effect on the claim for special damages (as she was not making a claim for continuing care, equipment or adaptions) and potentially only a very minor impact on the award for pain and suffering. It was dishonest embellishment in an attempt to underpin an essentially honest claim.

Substantial injustice

The “get out” clause for a fundamentally dishonest claimant is a successful argument that they will suffer substantial injustice if their primary claim (for personal injury) is dismissed.

In London Organising Committee of the Olympic and Paralympic Games (In liquidation) -v- Haydn Sinfield [2018] EWHC 51 (QB), the Court made it clear that the mere loss of damages to which the claimant would otherwise be entitled was not sufficient to establish substantial injustice. The default position under the CJCA was that a fundamentally dishonest claimant should lose their damages entirely. Something more was, therefore, required.

In Iddon -v- Warner [2021] EWHC 587 (QB), a claimant’s GP had missed the fact that she had breast cancer, and she subsequently had a mastectomy. The Court, however, found that she had misled the defendants and the Court with regard to her allegedly debilitating chronic pain that was irreconcilable with her continuing to participate in sporting events at the relevant time. By the standards of ordinary decent people, her actions were dishonest. In the Court’s view, the culpability and extent of her dishonesty far outweighed any injustice to her in dismissing her claim. The claimant lost her damages claim, could not fund her therapies and had to sell the house purchased from an interim payment in order to pay the defendants’ costs.

In Williams-Henry -v- Associated British Ports Holding [2024] EWHC 806 (KB), the claimant suffered a moderately severe brain injury and other injuries following a fall off a pier that was insufficiently guarded by railings. She claimed damages, including for loss of earnings and care. The defendant bore 2/3 liability which, on the basis of the amount claimed, would have been £2.3 million. The Court decided that the genuine element of the damages claim amounted to £895,000, 2/3 of that being almost £600,000.

However, the Court found that both the claimant and her mother had been thoroughly dishonest in their presentation of the claimant’s symptoms and disabilities and that the claimant’s dishonest presentation of her function and disabilities to clinicians, medico-legal experts and the Court were all fundamental to the claim.

The Court dismissed the claimant’s substantial injustice defence. The Court stated that the correct approach when deciding whether a substantial injustice arose was to balance all of the facts, factors and circumstances of the case and this included considering:

1. The amount claimed when compared with the amount awarded.

2. The scope and depth of that dishonesty found to have been deployed by the claimant.

3. The effect of the dishonesty on the construction of the claim by the claimant and the destruction/defence of the claim by the defendant.

4. The scope and level of the claimant’s assessed genuine disability caused by the defendant.

5. The nature and culpability of the defendant’s negligence.

6. What the Court would do in relation to costs if the claim was not dismissed.

7. Whether the defendant had made interim payments, how large these were and whether the claimant could afford to pay them back.

8. What effect dismissing the claim would have on the claimant’s life, housing, finances and ability to work.

The Court dismissed the claimant’s contention that she was suicidal, finding that any mental health instability she was suffering from had been caused by her own dishonesty.

The Court concluded it would not be a substantial injustice to deprive the claimant of the £600,000 to which she would otherwise have been entitled. However, it decided that the claimant did not have to pay back an interim payment of £75,000, and there was no order for the Claimant to repay the defendant’s costs. Such an order would only have been relevant for costs in excess of £600,000.

Limited capacity and statement of truth

In Shaw -v- Wilde [2024] EWHC 1660 (KB), the claimant was injured in a motorcycle accident and sought damages of over £6.5 million. The Court found that the claimant had a valid claim for about £1.2 million but, as he had been fundamentally dishonest, his entire claim was dismissed. He had given accounts of his mobility and function that he knew were untrue and misleading and he was not as severely affected by the accident as he had made out. In the Court’s view, the claimant was not merely exaggerating but rather that his conduct was dishonest by the standards of ordinary decent people.

The claimant had also signed several documents outlining his symptoms that were verified by a Statement of Truth. He argued that he had not realised he was advancing exaggerated claims because he had relied on experts and his lawyers. However, a person who verifies a document is taken to understand it and should appreciate the consequences of verifying it without an honest belief in its truth.

The Court further dismissed the argument that the claimant had limited capacity to understand what he was signing because he was uneducated, used cannabis and had neurodevelopmental disorders. The claimant had managed to deal with the huge amount of documentation without difficulty and had answered questions without problem. He had also been given the opportunity during his evidence to set the record straight but had chosen not to do so. The Court concluded that while dismissing the claim would cause the claimant significant financial hardship, it would not inflict substantial injustice.

Other claims/heads of loss

Dismissing a personal injury claim for fundamental dishonesty does not affect other, related claims which will be upheld if valid.

In Senay & another -v- Mulsanne Insurance Company [2024] EWCC 12, the claimant was fundamentally dishonest with regard to his personal injury claim following a road traffic accident but was still entitled to damages for damage to his vehicle and loss of its use.

In Reynolds -v- Chief Constable of Kent Police [2024] EWHC 2487 (KB), the claimant claimed damages for false imprisonment and contended that the force used on him amounted to assault. The Court on appeal found that his “barefaced lies” went to the heart of the claim for assault but not for false imprisonment.

“Without prejudice” communications

In Morris -v- Williams [2025] EWHC 218 (KB), the claimant claimed damages for personal injury following a road traffic accident. The defendant alleged that the claimant had consciously exaggerated his claim and was fundamentally dishonest. The defendant relied, as is often the case, on surveillance evidence to substantiate this allegation.

In a “without prejudice save as to costs” letter, the claimant admitted he had been fundamentally dishonest in respect of certain representations he had made. He was prepared to repay an interim payment from the defendant and to contribute towards some of the defendant’s costs. However, this was on the basis that the admission would not be disclosed, and the case would not be reported or discussed at all.

The defendant did not accept the claimant’s offer and sought to use the “wp” letter as evidence on the basis that it was covered by the “unambiguous impropriety” exception to the “without prejudice” rule. The Court agreed and decided that to refuse to admit the letter in evidence would allow the claimant to put forward at least part of his case on a false basis.

Comment

The consequences for a claimant with an otherwise valid damages claim for personal injury who is found to be fundamentally dishonest can be disastrous. There is, therefore, a high threshold for proving fundamental dishonesty.

Those advising such claimants should ensure that their clients understand the importance of being truthful in their evidence and that Statements of Truth are not signed lightly and without careful consideration of the contents of the verified documents. Likewise, once a claimant has signed a statement of truth, it is easier for a defendant to raise fundamental dishonesty, rather than doing so at a pre-action stage, when a claimant could change their position at the time of issuing proceedings, and before signing a statement of truth.

Defendants and their insurers should, in appropriate cases, obtain and use surveillance evidence, and conduct detailed analysis of the claimant’s DWP, personnel and medical records pre- and post-accident to log any inconsistencies or possible exaggerations, as well as conduct searches on social media and other related platforms to investigate whether the claimant is exaggerating their claims. Consideration should be given as to whether any court applications should be made for disclosure (for example, of the claimant’s social media platforms).

It should also be borne in mind that even if the Court finds a claimant has been fundamentally dishonest, the Court may not order the claimant to return any interim payment and/or award any costs in the defendant’s favour.

These cases generally turn on their facts and so, whilst the above case law is helpful as a starting point, consideration will need to be given to the facts on a case-by-case basis.