In our experience, insurance companies are increasingly seeking to prove that those claiming to have sustained serious personal injuries have been “fundamentally dishonest”. If it can be shown that a claimant has been dishonest in a way that goes to the heart of the case (which may include deliberately exaggerating the extent of injury, disability or loss), then no compensation or legal costs will be awarded. This scenario is a disaster for claimants and their legal teams alike.
It is quite right that dishonesty – extremely rare in our experience – should be exposed and discouraged, but claimants must understand the allegations and evidence they are facing, and have time to consider and respond accordingly.
Importantly, a defendant/insurance company seeking to make such a “nuclear” allegation, must give the claimant adequate notice.
In the case of Jenkinson v Robertson, a High Court judge has reinforced the need for defendants (insurance companies) to give proper warning of an allegation of fundamental dishonesty. Justice demands openness and fairness and the right to a fair trial, and this involves ensuring that there is no “trial by ambush”. In this case the appeal judge, Choudhury J, said:
“The allegation in this case, as it emerged during the trial (and even then, only expressly in closing submissions), was that the Claimant was being dishonest about the onset of symptoms. However, that particular allegation was not asserted by the Defendant at any stage before trial, and nor was it expressly put to the Claimant during the trial that he was being dishonest……there is a world of difference between putting to the Claimant that he was not in fact suffering the pain he now alleges and an allegation that he is fabricating or exaggerating the entire story about pain. There could be a number of reasons as to why the Claimant was not in pain at the relevant time without being dishonest, including that he was mistaken in his recollection… . if the Defendant’s case was that the Claimant was putting forward a dishonest claim, that ought to have been put to him fairly and squarely in order that he could respond…. He was not given that opportunity…..the approach taken by the Defendant did not comply with the requirement of adequate notice. Indeed it is difficult to see that the Claimant was given any real notice at all, apart from a vague and deliberately unparticularised allusion to the possibility of a fundamental dishonesty application. Merely alluding to such possibility does not, in the circumstances of this case, amount to adequate notice. …One of the benefits of giving adequate notice of a fundamental dishonesty application is that the defendant will ensure that all documentation relevant to the points relied upon is adduced with proper opportunity being given to the claimant to consider it and respond. It is self evident that that did not occur here given the absence of certain key documents and information”
We regard this judgment as an important reminder to defendants of the need for openness and transparency, for a “cards on the table” approach, so that claimants have time to understand and deal with such serious allegations. It was particularly unfortunate that this case involved a litigant in person; the first he knew of the allegation was in the defence barrister’s closing argument; that cannot be right, and this is what the judge ruled.
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