Fundamental dishonesty – the requirement for notice, and the need to look again at the law
January 29, 2026
By Chris Richards
Introduction
Imagine the scene. You have been injured in an accident, and you have brought a claim for compensation. You hope that the claim will settle, but it turns out the other side are arguing about who was to blame for the accident, or about how much compensation you should receive. The claim ends up going to court. You feel quite nervous. You have never done anything like this before, and the thought of standing there being questioned is stomach-churning. But your solicitors and barrister do their best to prepare you, and so you head to court. The barrister representing the other side asks you some questions. Some of the questions are quite tough – they are saying that you are not right about how the accident happened, or that some of the injuries were less serious than you have said. But you get to the end of the questioning and everything seems quite straightforward. You sit down, and listen to the barristers doing their closing speeches.
Then something unusual happens. The barrister for the other side says that you are lying. They even set out specific reasons why they say you are lying. Hang on, you think – they did not say any of this earlier. You want to say something. You want to tell them that they are wrong, that you are not lying, but if you try and say something you are shushed and told to be quiet. You then hear, to your horror, the Judge say that they agree with the barrister, and they think you are lying. You are then ordered to pay some absurd amount of money to the other side – £10,000, £20,000 – which means having your possessions taken away from you, or even your house sold from under you.
You might read that and think that this sounds completely unfair. You might read that and say that this sounds like a miscarriage of justice, the sort of thing which should not happen in England and Wales in the year 2026.
But what if I told you that the situation I have described actually happens all the time?
What if I told you that in fact, there are several decisions from the higher courts which suggest that the situation I have described above is actually absolutely fine?
Perhaps you might think that something is very wrong, and needs to change.
The starting point – the requirement for notice
The courts agree that people who bring claims for personal injury compensation, and who are being accused of dishonesty, need notice in advance. See the following paragraph in the case of Jenkinson v Robertson [2022] EWHC 756 (Admin):
“It is in the interests of basic fairness that a Claimant should be given adequate warning of, and a proper opportunity to deal with, the possibility of a finding of fundamental dishonesty. The consequences of such a finding are severe, and rightly so, but the safeguards against an unjust finding are the giving of adequate notice of the allegations and a proper opportunity to respond.” [paragraph 32; per Choudhury J]
There are several reasons why it is important for notice to be provided.
We generally do not have trial by ambush in this country. We generally accept that it is important for people to know the case that they are facing. This is why, for example, there is an expectation in civil litigation that each party will set out their case in their pleadings, so that the other side and the court know what the issues are.
If a Claimant knows that they are going to be accused of dishonesty, and why, they can tell the other side why they are wrong. They can obtain evidence supporting the idea that they are actually telling the truth. If the other side are saying, for example, that the Claimant is lying about having an injury to the shoulder, they can produce a witness statement from friends or family who saw them struggling with their shoulder.
This point about obtaining further evidence is not a controversial idea – see the decision of the High Court in the case of Pinkus v Direct Line [2018] EWHC 1671 (QB):
“However, as I said when I gave my ruling, I would not allow any issue to be raised of which the claimant would not have any sufficient notice and which he might have been able to deal with by way of additional evidence or which the experts would have been able to address, but had not and could not in the course of the hearing. Thus, I made it clear that I would not allow any specific points to be taken or arguments to be run which caused prejudice to the claimant because they came too late and in respect of which he had had no notice and could not deal with them or any such point where the experts would need to consider matters further and/or prepare supplementary opinion/reports/letters which could not fairly be done in the course of the trial.” [paragraph 14; per HHJ Coe QC, as was]
If a Claimant knows that they are going to be accused of dishonesty, they can ensure that proper resources are allocated to the claim. If the Claimant is a police officer, or a doctor, or a lawyer, and they are being accused of dishonesty, the consequences can be career-destroying, and so they can arrange for more senior lawyers to represent them.
The court can also make sure that proper resources are allocated to the claim. Instead of a trial being squashed into one day, the court can allocate two days. The court can arrange for a more senior Judge to deal with the case. The court can direct that skeleton arguments are provided. The court can allow those representing the Claimant to recover more costs if they are successful, to reflect the increased work they will have to do in responding to the allegation of dishonesty.
The general idea is that providing proper notice means that the Claimant, the Defendant, and the court, know that dishonesty is going to be a matter in issue, and they can properly argue it out, to try and achieve a fair decision.
What is the problem?
The higher courts have been asked a few times to decide what will amount to fair notice. The position in the case law is essentially as follows:
- Allegations of dishonesty do not need to be explicitly pleaded;
- Allegations of dishonesty may be raised as late as closing submissions(!);
- There is no hard and fast rule about what will amount to appropriate notice, and this will depend on the facts of each case.
It can be seen that the procedural safeguard referred to in Jenkinson has been watered down to a point where it barely exists. The general message is that allegations of dishonesty can almost be raised whenever, and however, the Defendant wants.
That cannot be right, and that must be generating miscarriages of justice.
The first missed opportunity – Howlett v Davies [2017] EWCA Civ 1696
The case of Howlett was a fairly straightforward claim for personal injury compensation. The Defence which was drafted by the Second Defendant (the insurer) did not say that the claim was dishonest, but effectively said everything but. The Defence said that injury was unlikely to have been caused, that the accident was potentially staged, and also raised the possibility of the court finding that there had been “elements of fraud”. The cross-examination of the Claimants similarly did not involve them being directly accused of dishonesty, but it was said that it would have been obvious that it was the honesty of the Claimants was being challenged, not just their credibility. The Claimants were found to have been fundamentally dishonest. The Claimants appealed, on the grounds that there should have been a direct allegation of dishonesty in order for the Court to safely make a finding of dishonesty.
The obvious answer would be for the Court of Appeal to say as follows:
- Where the Defendant intends to pursue an allegation of dishonesty based on matters which were known at the time the Defence was drafted, the allegation of dishonesty should be pleaded in the Defence;
- Where the allegation of dishonesty only arises because of matters which came to light during the trial, as long as the cross-examination makes clear to the Claimant that their honesty is being challenged (which will usually be through the use of words like ‘lying’ etc.), a finding of dishonesty is properly open to the court.
Instead, the Court chose to significantly water down the protections for Claimants.
The Court decided that allegations of dishonesty do not need to be pleaded:
“[T]he fact that a party has not alleged fraud in his pleading may not preclude him from suggesting to a witness in cross-examination that he is lying. That must, in fact, be a common occurrence.” [paragraph 39, per Newey LJ]
The Court suggested that the content of the Defence is still important, but failed to clearly identify what needs to be in the Defence to provide proper notice of the allegation, and essentially left this to the discretion of the trial Judge:
“[I]t must be open to the trial judge, assuming that the relevant points have been adequately explored during the oral evidence, to state in his judgment not just that the claimant has not proved his case but that, having regard to matters pleaded in the defence, he has concluded (say) that the alleged accident did not happen or that the claimant was not present.” [paragraph 31]
The Court also decided that there was potentially no need for the cross-examination to use words which made clear that honesty was being challenged, and again left it to the trial Judge to decide whether enough had been done to put honesty in issue:
“It may be that in a particular context a cross-examination which does not use the words ‘dishonest’ or ‘lying’ will give a witness fair warning. That will be a matter for the trial judge to decide..” [paragraph 39]
Interestingly, Counsel for the Second Defendant appears to have used quite ambiguous language when challenging the Claimants during cross-examination, and the court did not see this as a reason to go behind the finding of dishonesty:
“His recollection was that he had said things like ‘This is not true’ to the Howletts” [paragraph 37]
The Court helpfully reiterated the need for Claimants to have a proper warning of the allegation, and an opportunity to respond to it:
“The key question in such a case would be whether the claimant had been given adequate warning of, and a proper opportunity to deal with, the possibility of such a conclusion and the matters leading the judge to it rather than whether the insurer had positively alleged fraud in its defence.” [paragraph 31]
However, the Court removed two key safeguards from Claimants – (1) the need to have advance notice of the allegation in the Defence, and (2) the need for the language in cross-examination to make clear beyond doubt that honesty is in issue.
The next missed opportunity – the approach to closing submissions
One of the most surprising features of the case law is the repeated insistence that allegations of dishonesty can be made as late as closing submissions.
See the decision of the High Court in the case of Mustard v Flower [2021] EWHC 846 (QB):
“In an appropriate case it could, for example, be made orally and perhaps at as late a stage as the defendant’s closing submissions.” [paragraph 19, per Master Davison]
See also in the later case of Jenkinson:
“The s.57 defence can be raised at a late stage, even as late as in closing submissions.” [paragraph 25]
This seems completely contrary to the requirement for Claimants to have fair notice of the allegation of dishonesty, and an opportunity to respond.
If the allegation of dishonesty is raised for the first time in closing submissions, the Claimant cannot respond. The Claimant cannot give oral evidence in response. They cannot say in their own words why it is wrong. The Claimant cannot obtain documentary evidence in response. It is too late. The court ends up presented with only part of the story.
The only way that the Claimant can ‘respond’ at this point is by requesting that the trial be adjourned (for the Claimant to be recalled to give further evidence, and for further documentary evidence to be obtained), but Judges are highly unlikely to agree. Also, any Claimant requesting that a trial be adjourned loses the ability to argue that insufficient notice has been given, which (depending on the content of the cross-examination) might have been something that they would have wanted to pursue.
Interestingly, the High Court in the case of Jenkinson seemed rather queasy about the idea of a litigant-in-person being surprised with an allegation of dishonesty in closing submissions:
“However, in a case involving a litigant in person, the Court would ordinarily seek to ensure that the nature of any fundamental dishonesty allegation is properly understood by the litigant in person (whether by requiring the defendant to set out the particulars of the allegation in writing or otherwise), and that adequate time is given to the litigant in person to consider the allegation. The interests of fairness would generally militate against requiring a litigant to deal with a submission of fundamental dishonesty “on the hoof” or immediately after it is raised for the first time in closing submissions.” [paragraph 23]
But if it is wrong for a litigant-in-person to be surprised with an allegation of dishonesty in closing submissions, why would this be acceptable for a represented Claimant? What can the represented Claimant do differently, once they are surprised with an allegation of dishonesty in closing submissions? What is unfair for one is unfair for both.
Again – why are we tolerating a system where Defendants can use ambiguous language in cross-examination, prevent the Claimant from giving exculpatory evidence, and then ambush the Claimant with the allegation of dishonesty in submissions?
The view looking forwards
The messaging which has come from the government, and the insurance industry, over the past fifteen years or so, is that fraud is an ever-increasing problem which needs to be stamped out. That messaging does appear to have permeated to some degree into the thinking of the court. We all remember the remarks of Mr. Justice Martin Spencer in the case of Molodi v Cambridge Vibration Maintenance Service & Anor [2018] EWHC 1288 (QB), which discussed claims for compensation arising from whiplash injuries:
“Before considering the particular issues in this case, it is also pertinent to recognise the problem that fraudulent or exaggerated whiplash claims have presented for the insurance industry and the courts. This was recognised in March 2018 when the Ministry of Justice published a Civil Liability Bill which aims to tackle insurance fraud in the UK through tougher measures on fraudulent whiplash claims, proposing new, fixed caps on claims and banning the practise of seeking or offering to settle whiplash claims without medical evidence. The problem of fraudulent and exaggerated whiplash claims is well recognised and should, in my judgment, cause judges in the County Court to approach such claims with a degree of caution, if not suspicion.” [paragraph 44]
One wonders whether the reason why the safeguards for Claimants have been weakened so dramatically is a feeling that we need to ensure that the courts are able to root out fraudulent claims, and that putting safeguards in place will simply protect fraudsters. The problem with that is that these safeguards are there to ensure procedural fairness. If we weaken procedural fairness simply with a view to making it easier to obtain findings of dishonesty, we undermine the system of justice itself.
I think there is a need to look again at Howlett.
Exchange Chambers
29 January 2026
