A claim that was decided in May 2024 has added a new element to the vexed issue of fundamental dishonesty. Since the very first cases involving FD began to make their way through the court system they have turned the process of Personal Injury claims on their heads. In short (and I must stress that it is “in short”) the current position is that if you are found to be fundamentally dishonest about any part of your claim then this has the potential open up to the judge the option to throw out your entire claim and remove your right to claim costs from the defendant, even if the defendant is found liable for your injuries.

After this Case (Senay v Mulsanne Insurance Company Ltd), it appears that a new fork in the road may have been reached.

“The issue being the reach and effect of section 57 of the Criminal Justice and Courts Act 2015 (CJCA 2015) in claims which are for personal injury as part of a larger claim. Because the judge held there was no binding authority or guidance on the point, the court conducted an analysis of the wording of the 2015 statute, by reference to Hansard, to determine the intention of the legislature.”

What did the court Decide

“The claimant succeeded on liability at trial. His claims for recovery and storage succeeded, as did a claim for loss of use of the vehicle. However, his claims for credit hire and personal injury failed. The judge determined that the personal injury claim was fundamentally dishonest, as per CJCA 2015, s 57, which requires the court in a claim for damages for personal injury to dismiss ‘the primary claim’ if there is a finding of fundamental dishonesty.

Upon a finding of fundamental dishonesty, the courts’ duty extends to dismissal of ‘any element of the primary claim in respect of which the claimant has not been dishonest.’ The court determined that dismissal of ‘the claim’ due to fundamental dishonesty, pursuant to CJCA 2015, s 57, must be a reference to ‘the primary claim’ and accordingly, personal injury damages only:

‘17. In my judgment that reference to the claim must be to the primary claim…the inclusion of a definition of primary claim and its use in identifying what is to be dismissed would not be necessary if the dismissal extended to all claims brought in proceedings which include a claim for damages for personal injury.’

The court determined that in enacting CJCA 2015, s 57, parliament had intended to deprive claimants of damages for personal injury alone and not to deprive claimants of their property rights. The court was assisted by considering Hansard when the Act was under debate. The government rejected an amendment to section 57 which would have covered the entirety of the claim made, not merely damages for personal injury.”

The Statute Wording

UK Parliament ActsCriminal Justice and Courts Act 2015 (2015 c 2)Part 3 Courts and Tribunals (ss 46-83)57 Personal injury claims: cases of fundamental dishonesty
Civil proceedings relating to personal injury

57 Personal injury claims: cases of fundamental dishonesty

(1) This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”)—

(a) the court finds that the claimant is entitled to damages in respect of the claim, but

(b) 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.

(6) If a claim is dismissed under this section, subsection (7) applies to—

(a) any subsequent criminal proceedings against the claimant in respect of the fundamental dishonesty mentioned in subsection (1)(b), and

(b) any subsequent proceedings for contempt of court against the claimant in respect of that dishonesty.

(7) If the court in those proceedings finds the claimant guilty of an offence or of contempt of court, it must have regard to the dismissal of the primary claim under this section when sentencing the claimant or otherwise disposing of the proceedings.

(8) In this section—

“claim” includes a counter-claim and, accordingly, “claimant” includes a counter-claimant and “defendant” includes a defendant to a counter-claim;

“personal injury” includes any disease and any other impairment of a person’s physical or mental condition;

“related claim” means a claim for damages in respect of personal injury which is made—

(a) in connection with the same incident or series of incidents in connection with which the primary claim is made, and

(b) by a person other than the person who made the primary claim.

(9) This section does not apply to proceedings started by the issue of a claim form before the day on which this section comes into force.

Implications for Defendant Lawyers

“When faced with personal injury claims which are (potentially) tainted by dishonesty, defendants will need to carefully analyse those heads of loss which may survive a finding of fundamental dishonesty and therefore may still give rise to an award of damages and (most importantly) costs. Heads of loss directly related to an injury, for example loss of income, expenses incurred on paid help and so on, will almost certainly not survive a finding of fundamental dishonesty. However, claims for related property damage, repairs, credit hire and similar heads of loss may well do.

Defendants would therefore be well-advised to consider whether to make targeted Part 36 offers against specific heads of loss, and thereby focus the trial on those heads of loss which would be caught by a finding of fundamental dishonesty.

Although Senay is a County Court decision and therefore not binding, the decision is potentially in conflict with Darnley v Cornish [2021] 7 WLUK 723, regarding a personal injury claim which included a claim for damage to the bicycle. In Darnley the judge at first instance allowed the claim, but the entire claim was struck out on appeal due to FD, because C did not own the damaged bike”.

Download the full judgment text for Senay v Mulsanne Insurance Company Ltd