Qualified one-way costs shifting & fundamental dishonesty
From 1st April 2013, Personal Injury Claimants have been afforded the protection of Qualified One-Way Costs Shifting (QOCS), under CPR 44 Section II. This means that a Costs Order against a Claimant can only be enforced ‘to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the Claimant’.The QOCS protection is however removed if the Claimant has their claim struck out or it is found to be ‘fundamentally dishonest’.
What is believed to be the first finding of fundamental dishonesty in this respect has been made, in the case of Gosling v Screwfix and Anr (unreported - Cambridge County Court - 29th March 2014).
The Judge accepted the claim was not entirely dishonest, as he was satisfied that the Claimant suffered an injury as a result of the accident. However, due to surveillance footage obtained by the Defendant, it was found that the Claimant had exaggerated the extent of his symptoms, which was found to be dishonest. The level of exaggeration was such that it doubled the value of the claim and therefore it was found that this could be classed as fundamental. This therefore led to the question of whether the Claimant was deserving of the protection afforded to him by QOCS.
As a result of the finding of fundamental dishonesty, the Claimant was ordered to pay the Defendant’s costs of the claim on an indemnity basis. This therefore demonstrates that dishonesty, even in respect of part of a claim, could remove the QOCS shield in relation to the whole claim.
Giving guidance on the application of fundamental dishonesty in relation to QOCS, the Judge confirmed that in his view dishonesty that went to the whole or a substantial part of the claim was fundamental but dishonesty that was incidental to the claim would not be.
In light of this, it would seem we can expect to see applications for findings of fundamental dishonesty becoming more common place in the future, along with the Courts being more willing to make such a finding. Claimants should therefore be warned of the consequences of being dishonest when bringing a claim.
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