The costs consequences of fundamental dishonesty in personal injury claims
In the case of Anderson v Porch (14 January 2021) the court found that the Claimant had been fundamentally dishonest. The Claimant had misled the medical expert, his witness statement was inaccurate and surveillance evidence had been obtained, all of which discredited the Claimant’s evidence. Accordingly, the Claimant’s claim was dismissed pursuant to Section 57 of the Criminal Justice and Courts Act 2015.
The Judge was required to determine the total award that would have been made to the Claimant in accordance with Section 57 (4) of the Act, which states that:
“(4) The court’s order dismissing the claim must record the amount of damages that the court would have awarded to the claimant in respect of the primary claim but for the dismissal of the claim.”
His assessment was £44,489.
The Court ordered that the Claimant pay the Defendant’s costs, to be subject to detailed assessment on an indemnity basis and the Claimant be credited with the sum of £44,489 in respect of those costs. This was in line with Section 57 (5) of the Act, which states that:
“(5) When assessing costs in the proceedings, a court which dismisses a claim under this section must deduct the amount recorded in accordance with subsection (4) from the amount which it would otherwise order the claimant to pay in respect of costs incurred by the defendant.”
The finding of fundamental dishonesty sets aside qualified one way costs shifting (QOCS) and the Claimant becomes liable for the Defendant’s costs.
QOCS was introduced in 2013 as part of the Jackson reforms (CPR 44.13 to CPR 44.17) which introduced the well known (to personal injury litigators) principal that the Claimant will not be liable for the Defendant’s costs. However, as can be seen in this case, the Claimant can lose protection, in accordance with CPR 44.15 if:
(a) the claimant has disclosed no reasonable grounds for bringing the proceedings;
(b) the proceedings are an abuse of the court’s process; or
(c) the conduct of –
(i) the claimant; or
(ii) a person acting on the claimant’s behalf and with the claimant’s knowledge of such conduct, is likely to obstruct the just disposal of the proceedings.
Sue Fox is the Head of Costs Management at A & M Bacon. You can contact her on 01733 359036, or by email Sue.Fox@aandmbacon.co.uk
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