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.