FUNDAMENTAL DISHONESTY COST CLAIMANT £325,000 IN DEFENCE COSTS EVEN AFTER THE CLAIM HAD BEEN DISCONTINUED

I am grateful to Louise Jackson from Clyde & Co for drawing my attention to her piece about a recent settlement in a case where fundamental dishonesty was alleged.  This is not a case that got to trial. However it draws attention to the grave consequences for claimants who bring dishonest claims.  Louise’s post on the case can be found here.

THE CASE

The claimant brought an action alleging negligent gastric banding surgery. Liability was denied.  There were two defendants, a surgeon and a health authority. There was a significant claim put forward of over £2.5 million. “The Claimant pleaded that as a result of the alleged negligence she had been left with faecal frequency, urgency and incontinence, chronic diarrhoea and faced significant limitations on her diet and activities as a result of her bowel condition.  She pleaded that she continued to suffer significant fatigue, had reduced mobility and she required substantial care and support with most activities of daily living including cooking, cleaning and maintenance of her home.  She claimed that she was unable to work and had a travel phobia. At examinations by the Defendant’s experts she walked with assistance from her husband and stated that she spent most of her time in bed.”

EVIDENCE OF DISHONESTY FROM SURVEILLANCE AND SOCIAL MEDIA

Video evidence showed the claimant had exaggerated the extent of her injuries. It showed her undergoing a golf lesson. It transpired that she was the chair of a golf club, had played in at least three golfing competitions since 2022 and had a handicap between 22 and 23.

THE CLAIMANT DISCONTINUED THE ACTION

The claimant discontinued the action some five days before trial.  An order was made, after discontinuance, that the allegations of fundamental dishonesty be heard a a further hearing.

THE CLAIMANT’S AGREEMENT TO PAY COSTS

Two months before the trial on fundamental dishonesty the claimant agreed to pay the  defendants’ costs of £325,000. This was by way of an immediate payment of £100,000 and with charges being placed on properties to secure the balance.

THE COURT CAN STILL DETERMINE FUNDAMENTAL DISHONESTY AFTER DISCONTINUANCE

“Even on discontinuance of a Claim, the Court can consider whether to direct the determination of Allegations of fundamental dishonesty considering:

The stage at which the Claim discontinued;
The costs incurred by the Defendant(s) in investigating the Claim;
Whether the evidence discloses a triable issue;
The overriding objective of dealing with a case justly and at proportionate cost; and
The public interest in identifying false claims and claimants who pursue such claims should be required to meet the costs of litigation.”