Fundamental dishonesty: blind men and elephants?
6th March 2017
Patrick West, a member of our personal injury team reviews QOCS cases and what is ‘fundamental dishonesty’?
To date, there is no guidance from either the White Book or from the Court of Appeal to help us with the definition of “fundamental dishonesty” leaving District and Circuit Judges to find their way in the dark.
We still await a tour de force judgment from the senior courts on fundamental dishonesty. The latest slew of county court judgments on fundamental dishonesty is reminiscent of the old Indian story of the blind men describing an elephant. What is fundamental and what is dishonest in one case is not necessarily passing the test in another apparently similar claim.
It is useful to consider the matter as a two-limb test considering dishonesty first (albeit there will be liability cases where dishonesty and fundamentality are two sides of the same coin see Menary/Creech) and fundamentality second:
- Is there dishonesty?
- Can the “dishonesty” be explained by confusion or mistake (Meadows)?
- Is it a “black or white” type of dispute – i.e. the claimant must have realised he was lying (Creech).
- Dishonesty may attach to the claim not just to the claimant.
- Is the dishonesty peripheral to the claim (Rayner/Menary)?
- Is the dishonesty of a “very serious” kind (Bain)?
- Is there dishonesty notwithstanding the fact that the claimant is a generally honest person otherwise (Bain)?
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If you would like to instruct Patrick on a related matter please contact his clerks: [email protected] or 0117 923 4730.