Following the recent decisions of Howlett v Davies and Ageas Insurance Ltd  EWCA Civ 1696 and LOCOG v Sinfield  EWHC 51 (QB), the High Court has further considered the application of ‘fundamental dishonesty’ in the case of Razumas v Ministry of Justice  EWHC 215 (QB).
Razumas involved a clinical negligence claim, made by a prisoner against the MoJ, wherein it was alleged that there had been a negligent failure to diagnose cancer resulting in an above knee amputation. During the trial, the Court heard that the prisoner had lied about seeking treatment and that he had sought to base one of his allegations of negligence on this false assertion.
The Criminal Justice and Courts Act 2015, Section 57 (applying to all PI claims issued after 13 April 2015), dictates that where a claimant is entitled to damages, the entirety of his claim must be dismissed if he is found to have been fundamentally dishonest in respect of the primary or related claim, save where he would suffer substantial injustice if it were dismissed.
In Razumas, Mrs Justice Cockerill was asked to consider the issue of fundamental dishonesty and the application of Section 57. On the balance of probabilities, it was determined that the Claimant had been fundamentally dishonest, given that his ‘…dishonesty went to one route to succeed on it in full’.
In considering whether the Claimant would suffer substantial injustice if the entirety of his claim were dismissed, it was determined that ‘…something more’ was required than the mere loss of damages to which the claimant is entitled to establish substantial injustice.
Aidan O’Brien is a member of Farrar’s Building Clinical Negligence, Personal Injury & Fraud Teams and accepts instructions from both Claimants and Defendants. Aidan frequently delivers training, seminars and workshops upon request. Any such request should be made to the Farrar’s Building Clerking Team on +44 (0)20 7583 9241 or by email at firstname.lastname@example.org.