News & Resources

Defendant not permitted to plead fundamental dishonesty on a speculative or contingent basis

12th April 2021

Marcus Grant, instructed by Dickinson Solicitors, represented a Claimant in the High Court who objected to the wording of a draft amendment in and Amended Defence.

Master Davison handed down a reserved judgment intending to discourage pleas of fundamental dishonesty which are merely speculative or contingent.

The Defendant served an Amended Defence in a head injury claim that pleaded, inter alia, the words:

The Claimant’s accounts of the RTA and its immediate aftermath, and the nature and severity of her symptoms both before and after the accident have varied over time, are unreliable and are in issue. They have been exaggerated (or in the case of her pre-RTA history minimised) either consciously or unconsciously – the Third Defendant cannot say which absent exploring the issues at trial. In the event that the Court finds that the Claimant has consciously exaggerated the nature and/or consequences of her symptoms and losses, the Third Defendant reserves the right to submit that a finding of fundamental dishonesty (and the striking out of the claim pursuant to section 57 Criminal Justice and Courts Act and/or costs sanctions including the disapplication of QOCS) is appropriate”.

The Claimant contended that the Defendant should not be permitted to mention fundamental dishonesty in a pleading when there was no proper evidential basis.

The Court agreed and ruled that permission to include the words underlined would be refused. It found (at §22ii):

a plea of fundamental dishonesty has no real prospect of success and therefore, even pleaded on a contingent basis, does not satisfy the test for granting permission to amend’’.

The Court observed that such a pleading caused the Claimant prejudice because, per §22iii:

a plea of fundamental dishonesty has to be reported to the claimant’s legal expenses insurers and opens up a theoretical possibility of them avoiding the policy ab initio.  At the very least that will create an added burden of administration and costs.  Furthermore, a finding of fundamental dishonesty has grave implications for the claimant and the proposed amendment, if allowed, would be apt to raise further fears and anxieties for which, at the present time at least, there is no proper basis’.

Providing a reserved judgment that has been reported, the Master explained per §24:

What I am intending to discourage are pleas of fundamental dishonesty which are merely speculative or contingent’.

A copy of the judgment can be found here.


Related Barristers

Marcus Grant

Marcus Grant
Year of Call: 1993

Close X

TEMPLE GARDEN CHAMBERS is a market leading set with recognised excellence in a myriad of practice areas with awarded leaders in twelve specialist areas. TGC has the privilege of being well placed in the Temple and The Hague with superb facilities.

Currently consisting of 17 silks and 60 juniors with outstanding leadership and a long established clerking team acknowledged for their exceptional client services and business development, we are keen to expand upon our key areas.

To accommodate the growth in our core practice areas we are inviting applications from established practitioners and/or teams to further enhance our excellent reputation in the following fields:

• Personal Injury & Clinical Negligence
• Inquests & Inquiries
• Health & Safety
• Costs & Litigation Funding

TGC is widely recognised for its friendly ethos and its commitment to Equality & Diversity and Wellbeing. We are especially keen to encourage applications from underrepresented groups at the bar – women, people with disabilities, those from ethnic minority groups and members of the LGBTQ+ community.

Applications will be treated with the strictest confidence and should be addressed to the Head of Chambers, Keith Morton QC

In advance of any formal application both Keith Morton QC and Dean Norton (Senior Clerk) would be delighted to have a confidential discussion. To arrange a meeting please contact Dean on 020 7842 8641 or