Kerry Underwood

QOCS AND FUNDAMENTAL DISHONESTY: NO NEED TO PLEAD FRAUD

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These issues are dealt with in my book Qualified One-Way Costs Shifting, Section 57 Set-off available for £25.00 from Amazon here or me here.

In Howlett v Davies & Another [2017] EWCA Civ 1696

the Court of Appeal held that in the context of disqualifying a personal injury Claimant from the protection of Qualified One-Way Costs Shifting, a finding of fundamental dishonesty could be made even though the Defendant had not pleaded fraud.

All that is required is that the Claimant has been given adequate warning of, and a proper opportunity to deal with, the possibility that the judge might find dishonesty, and the matters that may lead the judge to that conclusion.

Here, the insurer’s defence and cross-examination had given the Claimant sufficient warning.

The Court of Appeal also endorsed as “common sense” the approach as to what is fundamental dishonesty taken in

Gosling v Hailo, unreported, 29 April 2014, Cambridge County Court

where HHJ Moloney said that a fundamentally dishonest claim was one “which depended as to a substantial or important part of itself upon dishonesty.”

In this case the Defendant had followed the guidance in

Kearsley v Klarfeld [2005] EWCA Civ 1510

on defending low speed traffic accident personal injury claims.

There, the Court of Appeal held that provided that Defendants complied with CPR 16.5 by setting out fully the facts from which the court was being asked to infer that the Claimant had not suffered the injuries as claimed, then there is no need to plead fraud or fabrication.

Comment

A pretty obvious decision.

Often it will be the evidence at trial which leads to a finding of fundamental dishonesty, as recognised here by the Court of Appeal.

Otherwise, taking an extreme case, a Claimant in cross-examination could say:

“Well, blow me – you got me bang to rights. I have made it all up.”

and escape a finding of fundamental dishonesty on the basis that the Defendant had not pleaded it, which absent a time machine would be difficult.

How do these matters ever get to the Court of Appeal?

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Written by kerryunderwood

November 22, 2017 at 9:18 am

Posted in Uncategorized

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