Claimant personal injury solicitors have reiterated their opposition to a controversial “fundamentally dishonest” clause in the Criminal Justice and Courts Bill.
The Bill passed last week and will come into force as soon as it gains Royal Assent. Clause 56, which is designed to tackle fraudulent claims, provides that the court must dismiss an entire claim if satisfied on the balance of probabilities that the claimant has been “fundamentally dishonest” in any part of it, unless doing so would cause “substantial injustice”.
Claimant practitioners fear claims could be too readily dismissed, for example, for exaggeration of special damages.
John Spencer, president of the Association of Personal Injury Lawyers, says: “The introduction of the power for blanket dismissal of a case for ‘fundamental dishonesty’ will lead to three things: an increase in satellite litigation as lawyers argue over what is meant by ‘fundamental dishonesty’ and ‘substantial injustice’; an increase in spurious allegations of fraud by unscrupulous insurers; an increase in the number of genuine claimants who either underplay their symptoms or who fail to bring valid cases at all, for fear of being falsely accused.”
However, David Spencer and Alistair Kinley of defendant insurance law firm BLM, writing in this week’s NLJ, say the clause, introduced by Justice Secretary Chris Grayling, “is surely a positive development”.
“The argument from some is that the new clause will be used as a stick to beat every claimant,” they say.
“There is an inevitable cry of this being a Draconian sanction. That is certainly so, but that alone does not make it inappropriate. The genuine but misguided claimant has nothing to fear.”
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