"FUNDAMENTAL DISHONESTY" AND STRIKING OUT IN PERSONAL INJURY CASES: TEN KEY PROCEDURAL POINTS

4 Responses

1. 

   gexall · May 9, 2015 at 19:24:16 · →

   Reblogged this on Zenith PI.

2. 

   kerryunderwood · May 10, 2015 at 06:44:34 · →

   Do you think that the defendant can cover all bases by a submission of fundamental dishonesty in any event thus triggering section 57 if the claimant is entitled to damages and triggering QOCS disqualification if no entitlement to damages?

3. 

   baser akoodie · May 10, 2015 at 10:40:57 · →

   Thanks gordon.the article on fundamental dishonesty has been most helpful.

4. 

   gexall · May 10, 2015 at 15:58:34 · →

   I suppose so. But there may be little point in practical terms. There are a number of alternatives:-

   1. The claimant loses because he or she is telling lies. In which case s.57 does not come into it because the court has to find that the claimant is entitled to damages for the section applies.

   2. The claimant wins some damages but is found to have been “fundamentally dishonest”. The defendant has to make an application. In this scenario the damages are set off against any liability to pay the defendant’s costs. (There is no bar to the claimant recovering some costs against the defendant, this is going to be an interesting area…).

   The section requires that there be “an application by the defendant for dismissal of the claim”. It may well be that s.57 applications are made (as a matter of course) in all cases where the defendant is doubting the claimant’s credibility. In some cases these may well be heard as part of the trial – in cases where there is not enough evidence to satisfy a court on an interlocutory application.

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