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Criminal Justice and Courts Act 2015, s.58 – “Fundamental dishonesty”

Any PI or clinical negligence claim issued after 12 April 2015 will be subject to section 58 of the Criminal Justice and Courts Act 2015 which introduces a potentially far-ranging concept of “fundamental dishonesty” as a (near mandatory) reason for dismissing an otherwise valid claim.

Part of the section is set out below but of note is the fact that “fundamental dishonesty” is not defined. Judges already have the power to strike out such claims (and use it): Summers v Fairclough Homes [2012] UKSC 26. Defendants will be seeking to extend the range using the new act (asserting that the new Act must go further than the current common law position) and Claimants will be arguing for a narrow interpretation.

Practitioners may want to review their retainer and CFA wordings. One solace for dishonest claimants is that whilst they will not receive the quantum of their valid claim, it will be deducted from the costs owed to the Defendant.

Section 58 reads in part:

  1. This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”)—
    1. the court finds that the claimant is entitled to damages in respect of the claim, but
    2. on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.
  2. The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.
  3. The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.
  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.
  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.

Napier Miles / 1st May 2015


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