What to know if you have been accused of dishonesty in a personal injury claim
March 28, 2022
I received an email recently from a member of the public who had read one of my articles on this website. The person had brought a personal injury claim and been accused of dishonesty. It would be wrong for me to go into detail about what was said and I do not propose to. However, the impression I gained was that the person was utterly bewildered to have been accused of dishonesty. It got me thinking about how many Claimants must be bringing claims, wholly truthfully, only to then be accused of dishonesty. It also got me thinking about how difficult an experience it must be for them. I thought it might be helpful to write an article, from the perspective of a barrister dealing with these claims, to give people in this position a little helpful detail about the situation they find themselves in.
I want to make clear at the outset that this article is not legal advice. This article should not be relied upon as if it is legal advice. Every case turns on its own facts. Every client is different. There is no substitute for obtaining legal advice from a lawyer who can discuss your case in detail.
Don’t be surprised if you are accused of dishonesty
You may have felt shocked when your solicitors told you that you were being accused of dishonesty. You might have felt that this was something out of the ordinary. I can tell you with some confidence that this happens all the time. There are certain types of cases where allegations of dishonesty are made almost as a matter of course. I deal with many claims which result from road traffic accidents. Sometimes, it is really obvious that the accident had enough force to cause injury. However, where the damage to the vehicles is limited, I usually take it for granted that the person bringing a claim may be accused of dishonesty.
There is big incentive for allegations of dishonesty to be made. Normally, where you bring a claim and you are unsuccessful, you pay the other side’s legal costs. The idea is that the other side should not be left out of pocket. However, the rules were changed recently. It was decided that if you bring a claim for personal injury compensation, and you lose, you do not usually have to pay the other side’s legal costs. This means that the other side have to take a big financial hit. One of the (very few) ways in which the other side can get you to pay their legal costs is if they persuade the Judge that you have brought a dishonest claim.
Another reason why allegations of dishonesty are so commonplace is that there is, believe it or not, no penalty for a Defendant who accuses a truthful Claimant of bring dishonest. The Defendant can trash the character of an honest person, put the fear of God into them, and then if the Judge decides that the Claimant has been perfectly truthful and straightforward, the Defendant can walk away without any additional consequences. The Defendant has to pay the Claimant their damages and costs, but they would have had to do this anyway. You may agree with me that this is something which needs to change.
The consequences of a finding of dishonesty can be disastrous
I have mentioned that allegations of dishonesty are frequently made. Most of the time, the Judge is not persuaded that anyone has been dishonest. However, if the Judge is persuaded that the claim is dishonest, the consequences can be disastrous. I have listed some of the consequences below:
- The person bringing the claim will almost inevitably be ordered to pay the other side’s legal costs. These are usually in my experience between £6,000 and £12,000 for a low-value claim but can be much higher for a higher-value claim.
- The person bringing the claim will likely be bound under the terms of the contract with their solicitors to pay the costs which they have expended in dealing with the claim. Most personal injury claims are brought under a no-win-no-fee agreement. There is usually something buried away in the agreement stating that where there is a finding of dishonesty, even if the Claimant does not win, the costs need to be paid out of pocket. The amount of the costs can end up being similar to those described above.
- The person bringing the claim may find it difficult to obtain insurance in the future. I understand that Claimants who are found to have been dishonest will have their details uploaded to the Insurance Fraud Register.
- The person bringing the claim may have their employment affected if their employment depends on having a clean record. A finding of fundamental dishonesty will be a huge problem for those who are already in regulated professions or those who are wanting to join them (teachers, police, nurses, doctors, lawyers and so on).
- The person bringing the claim may at worst be at risk of criminal prosecution. There may be an application to commit the person to prison for criminal contempt. There may be standalone proceedings for criminal perjury. These are very serious matters and can easily end up in a prison sentence.
I occasionally come across clients being given warnings about dishonesty which only mention the possibility of the Claimant having to pay the legal costs. It is worth making clear that the consequences of a finding of dishonesty can be much wider and much more damaging.
Telling the truth may not be enough
When I tell clients about the possibility that the Judge may not believe them, and the consequences which can flow from this, I often get the impression that the client knows they are telling the truth and hence thinks that they have nothing to worry about. The first part of this may well be true. I have no doubt that the majority of claimants who are accused of dishonesty are telling the truth. But the thing I have to stress is that the Judge is making their decision not by peering into your heart and finding out for themselves whether you are telling the truth or not. The Judge is going to be making an assessment of the evidence.
The evidence will include the answers which are given given when you are being questioned in court. You may think that you will be totally straightforward and credible during cross-examination. But cross-examination can be a difficult experience. There will be a skilled barrister who will be carefully picking apart what you are saying. The cross-examiner is drawing out the least helpful aspects of your evidence and burying the most helpful. It is possible that you will struggle. It is possible that a good cross-examiner will result in the Judge gaining a different impression of your evidence than the one you want to give.
The evidence will also include the documents which will be produced for the court case. There will be a great big bundle produced for the hearing which will include the witness statements, the medical reports, the medical records, and so on. The Judge will be looking at these documents to see what has been said about the accident and the injuries on previous occasions. If there are significant discrepancies it is going to be very easy for the other side to suggest that you are struggling to keep your story straight.
You may need to do some of the heavy lifting yourself
I have mentioned above that the stakes in cases involving allegations of dishonesty are extremely high. The solicitors preparing the case will work very hard to make sure that all the necessary evidence is obtained. However, it may be dangerous to think that everything can be left to them. After all, the solicitor is not going to have anywhere near as good an understanding of the accident and the injuries as you do yourself. The solicitor is also not going to have an infinite amount of time or money to spend on preparing the case. The costs which the solicitors will be able to recover from the other side to pay for the preparation of the case are usually capped. The costs are capped at a level which in my view is much lower than it should be.
There are therefore some areas which you may wish to explore:
- Are there any witnesses who can attest to you being injured? This might include those who were there when the accident happened, and also those who have seen you struggling after the accident.
- Can you get any evidence from your employer about time taken off work?
- Can you get any evidence from anyone else (gyms, health centres, etc.) about a time when you were not able to take part in leisure activities?
If you think there is something which may help your case it is always sensible to tell your solicitors.
Make sure that your lawyers are giving you comprehensive advice
It is really important to make sure that you are getting comprehensive advice about your case. The key areas that need to be covered in my view are as follows:
- What are the strengths and weaknesses of your case? What are the things that are helpful? What are the things that are harmful? How likely is it that you will succeed? If you have a good understanding of the strengths and weaknesses of your case this can then allow you to make an informed decision about whether to continue with the case or not.
- What are the consequences if the claim is successful? How much money will you receive?
- What are the consequences if the Judge cannot reach a decision? This does happen from time to time. The Judge may simply say that you have not proven to the relevant standard that you were injured, and then dismiss the claim. If you have taken out a policy of insurance to cover some of your legal costs, would everything be covered or would there be anything left to pay?
- What are the consequences if the Judge thinks you are lying? How much money would you have to pay the other side? How much money would you have to pay your solicitors? Would there be an effect on your home insurance, car insurance, employment and so on? Would there be a possibility of criminal proceedings?
- If the Judge decided that you were lying and there were reasons to believe that the Judge may have made an error (particular if your barrister took the same view), would your solicitors support an appeal? Would the costs of the appeal be covered by the no-win-no-fee agreement or would you have to pay out of pocket?
- What should be doing with the claim? Do your solicitors think you should pursue it further? Do they think you should be trying to bring the claim to an end?
It may be possible to negotiate bringing the claim to an end
It is quite common that the Defendant will be willing to agree to bring the claim to an end. This is what lawyers sometimes call a ‘drop-hands’. Imagine a pair of boxers who square up to each other and then ‘drop’ their ‘hands’. This is what this term is trying to get across. A ‘drop-hands’ usually involves the claim being brought to an end, the other side not asking for any of their costs to be paid, and no attempt being made to show that the claim is dishonest. The sticking point is sometimes that your solicitors may (quite understandably) want you to pay their costs if you bring the claim to an end. This is one of the reasons why it is important to try and decide early on whether you want to proceed. This may help to reduce the costs which are being built up.
Take care when reading or signing documents
One of the easiest ways to put yourself in difficulty is to sign things without reading them. There can be incredibly serious consequences for people who sign legal documents without an honest belief in the truth of their contents. I would always suggest sitting down and taking time to really go through any documents which you are asked to sign to make sure that you are happy with the contents. This is particularly important for the witness statement given that it is supposed to be written in your own words. It is important to give yourself the chance to spot any errors which exist. I note that it is very easy for errors to creep in. The medical report will be written by the doctor. The witness statement will usually be written by your solicitors or by an agent they have appointed. It is always possible that they will get things wrong. You need to be in a position to spot any errors before you come to sign anything.
If the Judge gets it wrong, you may struggle to appeal
You may be aware that decisions made by Judges can be appealed. If the decision is wrong, or if there has been some sort of procedural unfairness, you can go to a more senior Judge and ask them to get rid of the decision and start again. It is sometimes the case that there are prospects of reversing a decision on appeal. However, this is not a silver bullet. I can say from experience that if a Judge decides that you have been dishonest, unless there has been some sort of blatant error, it can be difficult to overturn the decision on appeal. There is also the question of funding. Unless you prepare the appeal yourself, you will need lawyers to help you. It is quite common that solicitors acting on a no-win-no-fee agreement may not be willing to continue representing you on appeal on the same basis if the Judge decides that you have been dishonest. This is why it is best to assume that the trial is the first and last night of the show.
I hope this article has been helpful.