http://www.bailii.org/ew/cases/EWHC/QB/2018/1671.html

The claimant claimed £850,000 for personal injury damages following a road traffic accident. Liability for the accident was admitted by the defendant, the other driver's insurer. However, the insurer believed that the claim was worth no more than £2-3,000. Various issues arose in the case, including the following:

1) Was the allegation of fundamental dishonesty pleaded too late? The defendant pleaded this in a counter-schedule which was only signed with a statement of truth on the first day of trial. The judge applied the recent decision in Howlett v Davies & Anor (see Weekly Update 39/17), in which the Court of Appeal held that "the mere fact that the opposing party has not alleged dishonesty in his pleadings will not necessarily bar a judge from finding a witness to have been lying" and that "The key question in such a case would be whether the claimant had been given adequate warning of, and a proper opportunity to deal with, the possibility of such a conclusion and the matters leading the judge to it rather than whether the insurer had positively alleged fraud in its defence". Here, it had been apparent from the outset that the claimant's credibility had been in issue: the insurer had denied the accident had occurred as the claimant said and had disputed causation and quantum. The claimant was also aware that he had been subject to surveillance.

2) Was the defendant's insured an independent witness to the accident? The judge held that he was: having admitted liability early on, it was accepted that he had no interest in the litigation, and nothing to gain or lose from it.

3) Did section 57 of the Criminal Justice and Courts Act 2015 apply? This provision provides that, even where there is a valid claim (and so the claimant would be entitled to damages), a finding of fundamental dishonesty can cause a claimant to lose the claim in its entirety. It came into force on 13 April 2015 and applies to all claims for personal injury, where proceedings were issued on or after that date. The judge found that, on the balance of probabilities, the claimant had been fundamentally dishonest and his fabrication and dishonesty substantially affected the claim. Accordingly, the entire claim (which the judge had valued at around £4,500) was dismissed.