header-logo header-logo

The truth hurts

spencer-kinley

David Spencer & Alistair Kinley assess the government’s attempt to legislate for the fundamentally dishonest

One particular clause of the Criminal Justice and Courts Bill has been exercising the minds and mouths of a number of personal injury practitioners, following a government amendment introduced by Justice Secretary Chris Grayling in June 2014.

The provision requires that, following the defendant’s application, the court shall (ie must) dismiss all of the claimant’s claim for damages for personal injuries if it is satisfied on the balance of probabilities that the claimant has been “fundamentally dishonest”, unless in doing so the claimant would suffer “substantial injustice”.

Background to the courts’ new duty

Fraud has gained particular prominence since the 2012 Supreme Court case of Fairclough Homes v Summers [2012] UKSC 26, [2012] 4 All ER 317, in which Lord Clarke confirmed the courts’ power to strike out fraudulent claims in their entirety, at any stage, as an abuse of the court’s process. That judgment reversed the Court of Appeal’s earlier decision

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

NLJ Career Profile: Ken Fowlie, Stowe Family Law

NLJ Career Profile: Ken Fowlie, Stowe Family Law

Ken Fowlie, chairman of Stowe Family Law, reflects on more than 30 years in legal services after ‘falling into law’

Gardner Leader—Michelle Morgan & Catherine Morris

Gardner Leader—Michelle Morgan & Catherine Morris

Regional law firm expands employment team with partner and senior associate hires

Freeths—Carly Harwood & Tom Newton

Freeths—Carly Harwood & Tom Newton

Nottinghamtrusts, estates and tax team welcomes two senior associates

NEWS
Children can claim for ‘lost years’ damages in personal injury cases, the Supreme Court has held in a landmark judgment
The cab-rank rule remains a bulwark of the rule of law, yet lawyers are increasingly judged by their clients’ causes. Writing in NLJ this week, Ian McDougall, president of the LexisNexis Rule of Law Foundation, warns that conflating representation with endorsement is a ‘clear and present danger’
Holiday lets may promise easy returns, but restrictive covenants can swiftly scupper plans. Writing in NLJ this week, Andrew Francis of Serle Court recounts how covenants limiting use to a ‘private dwelling house’ or ‘private residence’ have repeatedly defeated short-term letting schemes
Artificial intelligence (AI) is already embedded in the civil courts, but regulation lags behind practice. Writing in NLJ this week, Ben Roe of Baker McKenzie charts a landscape where AI assists with transcription, case management and document handling, yet raises acute concerns over evidence, advocacy and even judgment-writing
The Supreme Court has drawn a firm line under branding creativity in regulated markets. In Dairy UK Ltd v Oatly AB, it ruled that Oatly’s ‘post-milk generation’ trade mark unlawfully deployed a protected dairy designation. In NLJ this week, Asima Rana of DWF explains that the court prioritised ‘regulatory clarity over creative branding choices’, holding that ‘designation’ extends beyond product names to marketing slogans
back-to-top-scroll