header-logo header-logo

03 June 2016 / Flora Wood , Linda Monaci
Issue: 7701 / Categories: Features , Personal injury
printer mail-detail

Pulling a fast one?

Linda Monaci & Flora Wood examine the approach to applying malingering diagnostic criteria in cases involving head injury

The introduction of the concept of “fundamental dishonesty” to the defendant’s armoury in personal injury cases raises the stakes for litigants. If exposed, a claimant risks having their QOCS protection taken away or their entire claim struck out if the trial judge finds that they have been fundamentally dishonest in relation to “any aspect of the claim”. This article explores some of the methods used to identify malingering neurocognitive dysfunction (MND) to assist lawyers in deciding whether, perhaps, there are grounds to go as far as to plead fundamental dishonesty in the discrete area of brain injury.

Case law

The case law on the application and definition of fundamental dishonesty is still at a fledgling stage but was neatly summed up by Freedman J when considering CPR 44.16 in the case of Zurich Insurance v Bain (unreported, 4 June 2015): “What does fundamentally dishonest mean? It does not, in my judgment, cover situations where there is simply

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Harneys—Maggie Kwok & George Weston

Harneys—Maggie Kwok & George Weston

Harneys senior leadership appointments

Freeths—Keith Browne & Jim Jordan

Freeths—Keith Browne & Jim Jordan

Freeths strengthens London Construction and Engineering practice with two strategic senior hires

Anthony Collins—Laura Moss

Anthony Collins—Laura Moss

Anthony Collins announces strategic hire to deepen skills base in the social business sector

NEWS
More than 100 teams from the legal and financial services sectors competed in five sports at the 51st Law Society RFC Festival of Sport earlier this month
Part-time status need only be an effective cause of less favourable treatment, rather than the sole cause, the Supreme Court has held in Augustine v Data Cars
Britain’s new acknowledgement that Israel’s occupation is unlawful, and accompanying settlement-goods ban and sanctions, is significant but overdue, argue Danny Friedman KC and Victor Kattan in NLJ this week
New planning fee rises, wider trade union access rights and a service-by-email trap feature in Stephen Gold’s latest Civil Way
Existing defamation law can respond to AI ‘hallucinations’, but allocating responsibility will prove harder where outputs reach users without human intervention
back-to-top-scroll