Claimant loses QOCS protection after ‘fundamental dishonesty’ decision

A circuit judge has ruled that a claimant should be denied the protection of qualified one-way costs shifting (QOCS) as the claim was “fundamentally dishonest”.

In what is thought to be the first ruling of its kind, HHJ Moloney QC found in Gosling v Screwfix and Anr at Cambridge County Court, that the claimant had exaggerated the extent of his ongoing symptoms, after being persuaded by John Foy QC and Simon Brindle from 9 Gough Square.

Litigation Futures reported that Brindle had called the case a “stark warning" that the judiciary was willing to make a finding that a claim is fundamentally dishonest, "even if there is an element of honesty to it”.

“Substantial exaggeration, even if ‘only’ of around 50% of the claim, can result in a finding of fundamental dishonesty being made, and expose the claimant to enforcement of any costs order made against them to the full amount," said Brindle.

“Such costs orders could include not only any made as a result of the exaggeration of the claim, but of the whole claim.”

On 9 Gough Square's site, John Foy QC, wrote that the judge believed that the term 'fundamentally dishonest’ had to be given "a purposive and contextual meaning".

"In this respect he posed the question he had to answer, in broad terms, as whether the Claimant was deserving of the costs protection extended to him, for reasons of social policy, by the new QoCs regime.

"He held that there was a distinction to be drawn between dishonesty that was fundamental to the claim and that which was not. In his view, dishonesty that was ‘incidental’ or ‘collateral’ to the claim would not be fundamental. However, dishonesty that went to the ‘whole or a substantial part of the claim’ was," said Foy.  

Mark Dugdale