Fundamental dishonesty rule for personal injury claims questioned by Lords

Peers in the House of Lords are split on a last minute clause inserted into the Criminal Justice and Courts Bill which would make courts completely dismiss PI claims if claimants have been found to be “fundamentally dishonest”, as long as there is no resulting “substantial injustice”.

Litigation Futures has reported that Lord Beecham, the shadow justice spokesman, described the clause as “entirely one-sided sanction” as it did not penalise defendants and that it had no doubt been inserted “at the behest of the Conservative Party’s friends and supporters in the insurance industry”.

“Again, this is presumably a moveable feast. Of course, a court can already penalise a claimant in costs if it is satisfied that a claim has been exaggerated but, more to the point, this is an entirely one-sided sanction,” he said, speaking during the bill’s second reading in the House of Lords earlier this week.

“A defendant behaving in similar fashion would suffer no penalty, even though such conduct in a personal injury claim could itself add to the claimant’s suffering.”

Meanwhile, Liberal Democrat barrister Lord Marks argued that the needs of the claimant for the rest of his or her life had to “come first”.

“Instead of giving a judge a discretionary power to reject an entire claim or reduce damages to an appropriate extent, this clause would provide that the court must dismiss the claim unless satisfied that the claimant would otherwise suffer substantial injustice. Once again, I sense a lack of trust in judges to act sensibly in the exercise of their discretion in accordance with the justice and requirements of the particular case that they are hearing,” he said.

Lord Hunt of Wirral, a Conservative peer and partner in defendant law firm DAC Beachcroft, supported the clause, but suggested that it would need “clarification and further amendment”.

“We also have the situation, which I have known in my career as a practising solicitor, where quite often an overzealous claimant lawyer will include all sorts of areas of claim for which the claimant probably never had it in mind to sue and perhaps will link subsequent injuries to the original accident, when they were clearly due to something that happened afterwards and independently,” he said.

“How are we going to deal with a genuine injury that has nothing at all to do with the incident that has given rise to the claim?”

Mark Dugdale