Fundamental dishonesty in personal injury claims: an update

Ms Debbie O’Connell -v- The Ministry of Defence [2025] EWHC 2301 (KB)

Uchechukwu Atuanya - v - Ministry of Defence [2026] EWHC 758 (KB)

In an article dated 30 September 2025 (Fundamental dishonesty in personal injury claims: an overview | Hill Dickinson), we set out the law regarding fundamental dishonesty in personal injury claims and reviewed some recent decisions that illustrate the approach the English Courts have taken to claimants found to have been fundamentally dishonest in presenting their claims.

In this article we consider two further recent cases on fundamental dishonesty, both of which relate to claims against the Ministry of Defence.

O’Connell -v- MoD

In this case, the Court found that the claimant had been fundamentally dishonest in the evidence she gave with regard to her alleged disability, following a horse-riding accident that she suffered during her army service. Her claims against her employer, the Ministry of Defence (MoD), were dismissed in their entirety because liability had not been proven. Additionally, however, the Court granted the MoD permission to enforce any order for costs against the claimant to its full extent because of her fundamental dishonesty.

The background facts

The claimant was serving in the King’s Troop Royal Horse Artillery since October 2014. In September 2015, she was taking a riding lesson as part of her training and during her lesson the horse bucked, causing the claimant to be thrown off and fall to the ground. The claimant sustained a significant displaced fracture to her left clavicle, and this ultimately led to her medical discharge in 2017.

The claimant brought a claim against the MoD both in negligence and also under the Animals Act 1971 (1971 Act), which imposes strict liability in certain circumstances.

The claimant’s case was that whilst she had recovered from the orthopaedic injuries, she was suffering from ongoing left side arm pain including restricted movement which impacted her in many aspects of her life, including her ability to work and drive. The claimant’s schedule of loss was valued at £2,446,738.66.

The MoD denied liability both in negligence and under the 1971 Act. It contended that the claimant had recovered and that she could use her left arm normally or nearly normally and was exaggerating her condition and abilities. The MoD obtained surveillance evidence on two separate occasions and disclosed social media messages during the trial, to highlight the inconsistencies between these and the account given by the claimant in her sworn evidence.

The claimant nonetheless maintained that she was being truthful and denied any, or any significant, inconsistency in the evidence. She also emphasised that since the accident, she had proactively engaged with all the clinicians, had obtained alternative employment and had also competed as a disabled athlete.

The High Court decision

The Court dismissed the claims both in negligence and under the 1971 Act, finding that liability had not been proven.

It proceeded to consider the MoD’s application for leave to enforce any costs order ultimately made against the claimant to its full extent on the ground that she had been fundamentally dishonest. In other words, the Court was asked to disapply the claimant’s Qualified One-Way Costs Shifting (QOCS) protection, which prevents a defendant from enforcing an award of costs except by way of set off against damages or adverse costs orders. There are exceptions to QOCS, including pursuant to CPR 44.16, which provides:

“Orders for costs made against the Claimant may be enforced to the full extent of such orders with the permission of the Court where the claim is found on the balance of probabilities to be fundamentally dishonest.”

The defendant’s submissions on fundamental dishonesty were focused on surveillance evidence on how the claimant’s presentation on video was different from her accounts of her disability elsewhere. The claimant said her capacity to assist as seen on the surveillance evidence was in part due to the beneficial effects of a spinal code stimulator and the use of a strong painkiller, yet she had described in a number of reports that these treatments were ineffective.

The Court found that the evidence presented on the claimant’s dishonesty was overwhelming. In the Court’s view, it was evident that the claimant could do more than what she had declared. The differences between what the claimant had told the experts who examined her and what she could be seen doing in the surveillance captured was stark. The Court did not accept the explanation that she was rendered capable of doing what she can be seen doing on the surveillance by painkillers and a spinal cord stimulator. The Court added that the claimant’s presentation on surveillance was of someone with normal or near normal left upper limb and shoulder function and therefore found her evidence in relation to her symptoms was dishonest.

The Court also found that the evidence provided confirmed that the claimant had concealed the truth about having horses in her care, the point being that she was able to take care of them notwithstanding her alleged disability. Further, she had lied about her ability to drive a manual vehicle, falsely claiming that she had had her existing car adapted. She had then maintained she needed to purchase an automatic vehicle, which she had also dishonestly claimed for in her schedule. The Court additionally noted that the evidence provided proved that she was working on a full-time basis, rather than being limited to part-time sedentary employment. This was relevant to her claim for loss of earnings.

The Court held that the claimant had been dishonest over a long period of time, noting that the first dishonest account given by her was to her orthopaedic expert in December 2018, and she had also engaged others in her attempts to conceal the truth. The Court added that the claimant knew that the accounts she had provided in her sworn witness statement and schedule of loss were untrue. She knew that she was being dishonest and even if she did not, then she was still dishonest by the standards of ordinary decent people.

The Court concluded that the dishonesty was fundamental and went to the heart of her claim, as it related to the extent of the left upper limb disability. This in turn had a direct impact on the value of the claim, in that the dishonesty supported a claim for greater general damages, a significantly greater loss of earnings claim and a claim for future care. The Court added that in the absence of a precise calculation, the genuine claim, had it been successful, may well have been worth no more than 50% of the inflated dishonest claim, and so would have been a substantial claim. The Court did not consider substantial injustice, as the primary claim had already been dismissed.

Consequently, the Court held that the MoD could enforce any costs order against the claimant to its fullest extent.

Atuanya - v - MoD

In this case, determining the claimant’s dishonesty was not clear cut.

The claimant sought damages against the MoD for a non-freezing cold injury (NFCI) sustained whilst he was serving in the army. NFCI are neurological injuries sustained by exposure to the cold. Following the MoD’s allegations of fundamental dishonesty and after several years of litigation, a Notice of Discontinuance was filed by the claimant’s solicitors. However, allegations relating to fundamental dishonesty proceeded to trial. The defendant accepted the costs might never in practice be recovered from the claimant but wanted to send a message to anyone considering making a dishonest NCFI claim.

Following a four-day hearing, the Court found that the claimant had been fundamentally dishonest by exaggerating both unconsciously and consciously the impact of his mild NFCI, which went to the heart of his claim.

The background facts

The claimant was a soldier in the Grenadier Guards and served for over 14 years. The Court acknowledged the Claimant’s service to this country. He sought damages for NFCI and alleged that the MoD was negligent and in breach of its statutory duty, in failing to protect him adequately against cold injury. The claimant alleged that the NFCI led to the development of his psychological condition and, as a result, he was medically discharged from the army. The value of the claim was said to be over £200,000.

The claimant was seen by experts in the field of neurology, orthopaedics and psychiatry and witness statements were obtained. The defendant’s neurological expert concluded that, on balance, the claimant had mild NFCI that was ‘completely dominated by quite profound psychological issues’.

The MoD then obtained three days covert surveillance; the second day footage captured the claimant attending two medicolegal appointments in London and the third day footage captured the claimant around his home. One of the appointments was with the claimant’s vascular expert who noted in his report a few days later that ‘it is hard to distinguish between psychiatric illness and exaggeration’ Subsequently, relying on the covert surveillance footage, the MoD amended their defence to allege fundamental dishonesty. The MoD alleged that the claimant’s presentation of his injuries and symptoms to the various medical experts and in his witness statement, was irreconcilable with the ways he behaved in his own environment.

The MoD alleged, among other things, that:

1. the claimant was making out that he had more difficulty in walking than he did, including limping on the day of his expert appointments

2. he was exaggerating the weakness of grip in his fingers, as the surveillance evidence showed him moving a wheelie-bin, using a smartphone and driving

3. he was exaggerating his sensitivity to cold and had tried to 'hoodwink' the experts into believing that he wore warm clothing all the time

4. he was exaggerating his psychological problems as he was seen greeting a friend warmly on the day three surveillance

5. he displayed greater problems to one of the experts than another expert even though he saw them on the same day.

The claimant denied all these allegations. The final joint view of the neurological experts was that the claimant’s mild NFCI would have had negligible impact. They reached this final view after seeing a surveillance video of the claimant. The final joint report of the psychiatric experts said that there was ‘marked variability in the surveillance footage’ and ‘that surveillance footage has distinct limitation as far as psychiatric assessment is concerned, since many people can mask sadness or distress’.

The High Court decision

The Court first considered the relationship between inconsistency, inaccuracy, exaggeration and dishonesty. The Court’s view was that the claimant was an unreliable witness as his oral account was inconsistent with his written evidence and expert evidence, although this of itself was not suggestive of dishonesty as it was common for honest witnesses to be unreliable as memory is unreliable. Furthermore, exaggeration or loose speech, which was not intended to be taken literally, was also not dishonest. However, the Court did stress that anyone signing a document with a statement of truth should ensure that the document is accurate.

The defendant’s psychiatric expert suggested that the claimant had been 'exaggerating to convince,' meaning he possibly exaggerated his symptoms to convey his suffering, which was not the same as calculated dishonesty. The Court disagreed; knowingly making untrue statements in order to convey genuine suffering was dishonest as per the applicable test set out in Ivey -v- Genting as the claimant was aware that what he was saying was untrue and the ordinary person would consider it dishonest. The Court added that the purpose of CPR 44.16 and QOCS was to discourage dishonest claims, and allowing ‘exaggeration to convince’ as a defence would undermine that purpose, as then claimants could knowingly exaggerate elements fundamental to their claim and still retain costs protection. The Court’s view was that conscious and deliberate exaggeration for gain, was dishonest.

The Court accepted that the claimant did have a psychiatric illness and added that this made it very difficult to determine whether he had been dishonest. The Court also accepted that the claimant had at times exaggerated his symptoms and difficulties but again, it was difficult to determine whether this exaggeration was conscious or unconscious. However, on a balance of probabilities, the Court found that some of the claimant’s exaggerations were conscious in certain respects and he had been exaggerating the physical difficulties he faced in order to convince experts of the extent to which he was suffering and had suffered, and this was ultimately dishonest.

As to whether the exaggerations were fundamentally dishonest, the Court did not consider the claimant had been fundamentally dishonest in describing his psychological difficulties, as the overall evidence clearly indicated that the claimant did have a genuine mental illness, which also pre-dated his claim. The Court did not give any great weight to the surveillance footage of the claimant greeting a friend. The Court in this regard said, ‘a person suffering from a moderate depressive episode could, in those circumstances, behave as the Claimant did – ie, they could mask or rise above their low mood while they greeted an old friend’. However, it believed that the claimant did consciously exaggerate his need to wear warm clothing because the surveillance footage over two days and during similar temperatures and level of sunshine showed him on one day wearing a hoodie, jacket, hat and gloves, and on the other day wearing light clothing. This dishonesty was fundamental to the claimant’s claim, because sensitivity to the cold was a key element of the claimant’s claim given that he was claiming £150,000 for being disadvantaged on the open labour market because he said he could not work in the cold.

As the Court had made a finding of fundamental dishonesty in this respect, it did not need to address the other allegations of dishonesty. However, it did not think the claimant had faked a limp or lied about his ability to climb stairs, although there was an element of underplaying his level of mobility on good days.

Ultimately, therefore, the claimant was deemed fundamentally dishonest in his claim. The Court found the claimant had a genuine mental illness and has not exaggerated his distress but exaggerated the impact of his mild NFCI in order to convey his suffering, which had a direct impact on the damages claimed. The Court made a costs order against him.

Comment

These two decisions reflect the Court’s policy of discouraging and deterring personal injury claimants from giving dishonest evidence to bolster and inflate their claims. As the Court emphasised in Atuanya, it does not apply the criminal standard (beyond reasonable doubt), nor the old test under R -v Ghosh (subjective dishonesty), both of which may have resulted in judgment in the claimant’s favour in that case.

These cases remind those advising claimants to ensure their clients understand the importance of signing a statement of truth. In Atuanya, the Court reminded claimants and their representatives that ‘anyone signing a statement of truth has both the responsibility and the opportunity to ensure that the contents of the document they are signing are accurate’.

Finally, the cases also demonstrate the importance of defendants and their insurers obtaining all available medical, surveillance and social media evidence to look for any inconsistencies to test and challenge such claims as appropriate.

For advice on personal injury claims, including those involving allegations of fundamental dishonesty, our Personal Injury team are on hand to help. Contact us to discuss how we can help.