The Court of Appeal has confirmed a recent lower court ruling that failing to prove a case does not mean the claimant was dishonest and loses QOCS protection.

In Da Costa & Anor v Sargaco & Anor [2016] EWCA Civ 764 the trial judge made a finding of dishonesty following a claim for damage allegedly caused to motorcycles.

On Appeal Lady Justice Black noted:

“The first thing to say is that a finding of fraud does not inevitably follow from a rejection of an accident claim as not proved. There may be many reasons why the claim is not proved other than that it has been fraudulently manufactured".

"Furthermore, a claimant’s failure to establish that a particular defendant negligently drove a car which collided with the claimant’s vehicle and caused damage is not the same, as a matter of law and logic, as it being established that the claimant made a fraudulent claim".

This case follows Meadows v La Tasca (unreported) in which the Claimant lost their slip and trip claim resulting in defending counsel making an oral fundamental dishonesty application at trial.

At first instance, DJ Khan ruled the Claimant's evidence was "riddled with inconsistencies" resulting in him not believing the Claimant or their witness. He noted that it was difficult to see how this was anything other than a dishonest claim.

On appeal, His Honour Judge Hodge QC overturned the finding. He noted that the "conclusion that the claim was fundamentally dishonest falls well outside the ambit of reasonable judicial decision-making".

Accordingly "it was not appropriate for the judge to find that the accident had not happened in the circumstances described. He should have limited his decision… to a decision simply that the claimant had not made out her case on the evidence before him."

These cases represent the latest attempts by the courts to define what is meant by fundamental dishonesty. As previously reported, claimants and defendants have both obtained rulings in their favour in recent months. The exact parameters of what constitutes fundamental dishonesty are likely to take some time yet to determine.