I do solemnly and sincerely declare that the evidence I shall give shall be the truth, the whole truth, and nothing but the truth.
We have all heard of the above phrase, most of us from a TV drama or film of one kind or another, but what happens when that evidence isn’t exactly the whole truth?
In a claim for personal injuries arising out of a cycling incident, or any personal injury claim for damages for that matter, it is vitally important that the Claimant is open and honest about their injuries and any past or future losses they are claiming. All injuries and losses require evidencing, and the term ‘evidence’ extends to whatever is shared or found out about the injuries and losses throughout the life of the claim, not just what is said ‘in the box’ in Court, contrary to common misconception.
Whilst it is not for the Claimant’s representative to tear their own client’s evidence apart, it is equally important that the representative highlights to the injured party where certain heads of loss are likely to be questioned by the Defendant, more so than others, and assess what could be done about that.
What is fundamental dishonesty?
Fundamental dishonesty is an argument which a Defendant is entitled to raise in a personal injury claim if they suspect a Claimant has exaggerated their claim in any way. This could be the whole claim itself, or a particular part of the claim. Even if fundamental dishonesty or exaggeration is found in a minor part of the claim, the repercussions can be serious – it can sometimes be open for the entire claim to be struck out, not just a select part of it.
It is no secret in the personal injury claims world that some Defendants like to peer through a Claimant’s evidence, criticise more than cooperate, and even sometimes instruct surveillance evidence to be carried out. More often than not, if there is fundamental dishonesty or exaggeration to be found, the Defendant will find it.
The cost of exaggeration
The most common penalty for a finding of fundamental dishonesty is the claim being struck out, in whole or in part, and there being an order made for the Claimant to have to pay the Defendant’s costs, in whole or in part.
Depending on the severity of the finding however, one can find themselves in slightly more bother:
Last month the High Court found that a dishonest Claimant, Hilton, was to face a custodial sentence for the seriousness of his actions.[1]
Hilton advanced a £600,000 personal injury claim following a 2015 incident. He signed a statement of truth asserting that he was unable to walk properly, dress himself and drive, amongst other activities. Surveillance evidence obtained by the Defendant showed Hilton able to drive and walk unaided. Hilton’s dishonesty extended to forging documents, including a birth certificate, in order to assist his claim for his own betterment. Hilton was ordered to pay the Defendant’s costs, repay £10,000 which the Defendant had paid to him earlier on in the claim before dishonesty was found, and given a 10-month prison sentence (after a one-third discount for an early guilty plea to contempt.)
Our top tips for a smooth claim, particularly in relation to avoiding the headache of exaggeration allegations from a Defendant, are:
- Most obviously, do not exaggerate anything… (however small!)
- Preservation of evidence is key. The more thorough the evidence that can be provided to a Defendant, the higher your chances of a successful claim for a reasonable settlement amount.
[1] Case cited: QBE UK Limited v Mark Raymond Hilton [2023] EWHC 2931 (KB) – The full Judgement can be found here https://caselaw.nationalarchives.gov.uk/ewhc/kb/2023/2931