Fundamental dishonesty

Since the introduction of Section 57 of the Criminal Justice and Courts Act 2015 there is some judicial guidance as to the scope and definition of the phrase 'Fundamental Dishonesty'.

The judgement in the case of Zurich Insurance Plc v Bain (2015) is worth reading. On appeal from the District Judge, Judge Freedman accepted that the Claimant may well be an upright and honest member of society but in this case he had "let himself down" and his dishonesty went beyond simple "exaggeration and embellishment" but went to the very core of the claim as he had told the GP he had no history of back injury and signed a statement of truth claiming he had suffered a back injury when he had not. QOCS was dis-applied in that case and a costs order was enforced against the Claimant.

In a recently well publicised county court case involving Ikea, the Defendant retailer sought to have the case thrown out under S57 by saying the Claimant was fundamentally dishonest and injured herself trying to lift the wardrobe. The judge in that case did not accept these arguments and criticised Ikea for having taken a "stance of suspicion rather than sympathy". It is believed to be one of the first cases in which a Defendant has failed with a fundamental dishonesty defence and Claimant groups are calling for an amendment in the rules to permit Claimants who successfully defeat an allegation of fundamental dishonesty to be awarded indemnity costs or aggravated damages.

Increase to small claims limit

Last month we reported on the announcement made by the Chancellor George Osborne to remove the right to claim compensation for minor soft tissue injuries and to increase the small claims limit for personal injury cases from £1,000 to £5,000. The consultation has commenced but it is anticipated that the scrapping of whiplash damages will need primary legislation and this has been scheduled for April 2017.

The increase in the small claims limit may however be introduced sooner.  Ministry of Justice officials have told lawyers that they have yet to decide on the scope of the rise in the small claims limit. Concerns have been expressed by Johnathon Wheeler, President of APIL, who said "only two years ago, the Government ruled out increasing the small claims court limit because there were no adequate safe guards to protect genuine claimants. there are still no adequate safe guards." Insurers however welcome the move and claim it is an important step against fraud and many have committed to pass the savings on to the premium paying public.

Portal reforms on hold

The company running the Ministry of Justice portal for low value claims had announced an intention to introduce a fee, to be paid by the Claimant's representatives who use the portal. It was anticipated that the modest administrative fee would be less than £5 per claim. It was also anticipated that new software would be realised in April 2016 to improve the "visibility of claims" and add more functions for users.

Following George Osbourne's announcement in November 2015 that the small claims limit should rise for personal injury claims from £1,000 to £5,000 and that no damages at all would be awarded for low value whiplash injuries (see our December update for more details) those plans have been put on hold, with the future of the portal generally being called into question.

MedCo

Following the introduction of MedCo for all soft tissue claims submitted through the portal, an accreditation scheme is yet to be introduced. The introduction of accredited experts on MedCo has been put back from February 2016 to April. It remains the case that medical experts are not keen to undertake the 30-35 hours of web based training on medical examination, medical report writing and relevant legal principles which are required to become accredited. APIL (the organisation that represents Claimant lawyers) is concerned that accreditation does still not represent a measure of competence.