Fundamental Dishonesty in Personal Injury Claims: What It Means, and What Honest Claimants Need to Know

Introduction

Few phrases carry more weight in modern personal injury litigation than “fundamental dishonesty”. A finding of fundamental dishonesty does not simply reduce a claimant’s damages. It destroys the claim entirely, including the honest parts. It exposes the claimant to the defendant’s legal costs in full, and may lead to committal or criminal proceedings.

Eleven years after section 57 of the Criminal Justice and Courts Act 2015 came into force on 13 April 2015, allegations of fundamental dishonesty are routinely raised by insurers, and the case law continues to develop. This article explains what the law actually requires, where the courts have drawn the line, and what a claimant with an honest claim should do to protect their position.

Two separate routes, often confused

Practitioners and clients frequently treat “fundamental dishonesty” as a single concept. In fact, there are two distinct mechanisms, with different consequences:

Section 57 of the Criminal Justice and Courts Act 2015: dismissal of the claim. Section 57 applies where the court finds that the claimant is entitled to damages for personal injury, but the defendant applies for dismissal and the court is satisfied, on the balance of probabilities, that the claimant has been fundamentally dishonest in relation to the claim or a related claim. The court must dismiss the entire claim, including any element not tainted by the dishonesty unless satisfied that dismissal would cause the claimant substantial injustice. The court must also record in its order the damages it would have awarded but for the dismissal, and that figure is then set off against the costs the claimant is ordered to pay.
CPR 44.16: loss of costs protection. Qualified one-way costs shifting (QOCS) ordinarily prevents a losing claimant from having to pay the defendant’s costs. Where the claim is found on the balance of probabilities to be fundamentally dishonest, CPR 44.16(1) permits the court to disapply that protection, and costs orders may then be enforced against the claimant in full.

The two routes overlap but are not identical. Section 57 concerns dismissal of a claim that would otherwise have succeeded; CPR 44.16 concerns enforcement of costs and can apply even where the claim has failed outright. A defendant will often invoke both.

The legal test

Neither the 2015 Act nor the CPR defines fundamental dishonesty. The content of the test has been supplied entirely by case law.

Dishonesty is assessed by the two-stage approach in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67: the court first determines what the claimant actually knew or believed as to the facts, and then asks whether, against that background, the conduct was dishonest by the standards of ordinary decent people. There is no requirement that the claimant appreciated that what he or she was doing was dishonest by that objective standard.

Fundamental was addressed in London Organising Committee of the Olympic and Paralympic Games v Sinfield [2018] EWHC 51 (QB). Julian Knowles J held that dishonesty is fundamental where it substantially affects the presentation of the case in a way that potentially adversely affects the defendant in a significant way. In Sinfield itself, a dishonest gardening claim representing roughly 40% of the special damages was enough to taint the whole action, notwithstanding that the greater part of the claim was honest.

In Howlett v Davies [2017] EWCA Civ 1696, the Court of Appeal confirmed that the dishonesty must go to the root of the whole of the claim or of a substantial part of it.

The principles were usefully collected by Choudhury J in Jenkinson v Robertson [2022] EWHC 756 (Admin):

the burden lies on the defendant, on the balance of probabilities;

the dishonesty must go to the heart or root of the claim, or of a substantial part of it;

it must have a substantial effect on the presentation of the claim in a way that potentially adversely affects the defendant in a significant way.

What fundamental dishonesty is not

The threshold is a high one, and the courts have been careful not to apply the label lightly. The following do not, without more, amount to fundamental dishonesty:

Inconsistency or unreliable recollection. Claimants describing an accident years after the event are frequently inaccurate. Being wrong is not the same as lying.

Failure to prove the claim. A claimant who loses has not, by that fact alone, been dishonest.

Collateral lies. In Cojanu v Essex Partnership University NHS Trust [2022] EWHC 197 (QB), the claimant had lied about how his original injuries were sustained, but that dishonesty was irrelevant to the clinical negligence alleged and so was not fundamental to the claim.

Dishonesty confined to one cause of action. In Reynolds v Chief Constable of Kent Police [2024] EWHC 2487 (KB), the claimant’s untruths went to the heart of an assault claim but not to a claim for false imprisonment. Similarly, in Senay v Mulsanne Insurance Company [2024] EWCC 12, a claimant found fundamentally dishonest as to his personal injury claim nevertheless recovered for damage to his vehicle and loss of its use. Section 57 bites on the personal injury claim, not on every head of loss in the proceedings.

Findings are also capable of being overturned. In Denzil v Mohammed [2023] EWHC 2077 (KB), the High Court set aside a trial judge’s finding of fundamental dishonesty.

Conversely, claimants should be aware that conscious exaggeration is enough. The courts have rejected the argument that a claimant who overstates symptoms in order to convey the reality of genuine suffering i.e “exaggerating to convince” is somehow not dishonest. If the claimant knows the statement is untrue, the Ivey test is satisfied.

The “substantial injustice” exception and why it rarely succeeds

Section 57(2) permits the court to decline to dismiss the claim where dismissal would cause substantial injustice. In practice the exception has proved extremely difficult to invoke.

In Woodger v Hallas [2022] EWHC 1561 (QB), the High Court observed that no case had defined the phrase, and that judges would generally “know it when they see it”. Loss of genuine damages is not, of itself, an injustice: that is precisely the consequence Parliament intended.

The most detailed guidance to date is that of Ritchie J in Williams-Henry v Associated British Ports Holdings Ltd [2024] EWHC 806 (KB). The claimant had suffered a moderately severe traumatic brain injury falling from the defendant’s pier; liability was agreed at two-thirds in her favour, and the court assessed her genuine damages at just under £600,000. Having found gross exaggeration and fabrication across a range of symptoms, the judge dismissed the entire claim. In doing so he set out the approach to substantial injustice as a balancing of all the facts and circumstances, including the amount claimed against the amount that would have been awarded, the scale and duration of the dishonesty, the effect of dismissal on the claimant, and whether repayment of interim payments would be ordered.

The message from Woodger, Iddon v Warner and Williams-Henry is consistent: a dishonest claimant should not expect the exception to save the claim.

Notice: the live battleground

Because the consequences are so severe, procedural fairness matters. The courts accept in principle that a claimant must have adequate warning of an allegation of dishonesty and a proper opportunity to answer it (Jenkinson, at [32]).

In practice, that protection is thinner than many clients expect. Howlett v Davies established that fraud need not be positively pleaded, provided the defence sets out the factual case from which the inference of dishonesty will be invited and the points are properly explored in cross-examination. Subsequent decisions have gone further, indicating that a section 57 application can be made informally and, in an appropriate case, as late as closing submissions (Mustard v Flower [2021] EWHC 846 (QB); Jenkinson).

This has attracted growing criticism at the Bar during 2025 and 2026, on the basis that an allegation first articulated in closing submissions leaves the claimant with no practical means of answering it, no opportunity to give evidence in response, and none to obtain supporting material. Whether the appellate courts will revisit Howlett remains to be seen. Until they do, claimant representatives must anticipate the allegation rather than wait for it.

It is worth adding that the traffic is not entirely one-way. In Thakkar v Mican [2024] EWCA Civ 552, the Court of Appeal held that there is no presumption in favour of indemnity costs where a defendant’s allegation of fundamental dishonesty fails; the burden remains on the claimant to justify such an order. The Court accepted, however, that a failed allegation of dishonesty will very often attract indemnity costs on the facts. Insurers who label a routine claim as fraudulent without proper foundation therefore do so at real risk.

Practical guidance for claimants

Honest claimants have nothing to fear from section 57, but they can make life considerably easier for themselves and their solicitors by observing a few basic points.

Tell your solicitor everything at the outset, including previous accidents, previous claims, pre-existing symptoms and any prior injury to the same part of the body. Almost every serious fundamental dishonesty finding involves something the claimant concealed rather than something the claimant invented.

Be accurate with medical experts. Experts record what they are told and their reports are disclosed. Describing your worst day as though it were every day is the single most common route to an allegation of exaggeration.

Assume you are being watched. Surveillance evidence and social media are the principal tools by which dishonesty is exposed. A holiday photograph is not evidence of fraud, but an unexplained inconsistency between your account and your online record will be put to you in cross-examination.

Keep your financial evidence in order. Loss of earnings claims require payslips, accounts and tax records. Concealed earnings are treated severely.

Do not overstate care and assistance. Gratuitous care claims are frequently reconstructed after the event and are a recurring source of difficulty, as Sinfield illustrates.

If dishonesty is alleged, take it seriously and take advice immediately. The allegation must be answered on the evidence, and the earlier that work begins, the better.

How we can help

T&A Solicitors acts for claimants across the full range of personal injury work, including road traffic accidents, employer’s liability, public liability and fatal accident claims. We advise clients candidly on the risks in their claim, prepare cases so that inconsistencies are identified and addressed before they become allegations, and defend robustly where a fundamental dishonesty case is advanced without proper foundation.

If you have been accused of fundamental dishonesty, or you are concerned about how an aspect of your claim may be viewed, contact us for a confidential discussion.