Most Personal Injury lawyers will approach a client’s damages on the most reasonably optimistic basis, on the documentation and medical evidence available. The insurers will almost always argue lower figures are more appropriate on certain aspects of the claim. Certainly, one should be realistic and sensible when considering offers of settlement. However, it appears to be a trend at present for insurers to claim fundamental dishonesty when there are inconsistencies in a claim.
A claim for fundamental dishonesty is serious, if a judge considers that a major part of your claim is made dishonestly, even if some of your case is legitimate, the whole of your case will be struck out and you will be ordered to pay the insurers costs. If the insurer does not succeed on fundamental dishonesty, they can argue exaggeration where again the client will be penalised. Some lawyers, when there are inconsistency or the evidence does not quite stack up, are cutting their losses and refusing to act leaving the client in some cases high and dry. The client then has difficulty getting another lawyer to act because of the cost risks and the client can end up discontinuing their claim or worse.
Fundamental dishonesty was approached in the case of Gosling v Screwfix Direct which stated that if dishonesty went to the root of either the whole of his claim or a substantial part then this would amount to fundamental dishonesty. The case is then struck out and the client is ordered to pay the costs and if the court wanted to throw the book at you, contempt of court. What some insurers are seeking to achieve with such an argument is for you to discontinue your claim.
Of course, if you allege that you have a back injury and you are then filmed bungee jumping you will be held to be fundamentally dishonest, as Noreen Murray was when appearing on Channel 4 bungee jumping only 19 days after claiming she had suffered a back injury at work. However, inconsistencies in your case may not amount to fundamental dishonesty. This was the view of the Court of Appeal in Meadows v. La Tasca where they found that the cumulative effect of these inconsistencies was not so great as to find a fundamental dishonesty. The earlier conclusion of the lower court was that these inconsistencies amounted to fabrication. Not so, said the Court of Appeal.
If there is a clear case of dishonesty like the case of our bungee jumper then these are undefendable. However, if there is mere inconstancy and one has a genuine claim, then a claim for fundamental dishonesty should be fought at an early stage. Claims of exaggeration, again, should be fought if there is a legitimate claim based upon the evidence. If the exaggeration is genuine then there should only be a reduction in costs if it has caused the insurer further expense.
If you need any help in relation to such claims or have a need to transfer such a case if there is a conflict of interest, please do not hesitate to contact our Mr Harriman on 01494 893563 or by email at firstname.lastname@example.org