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Fraud Offences Articles

A guide to fundamental dishonesty in personal injury claims

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While in terms of numbers it may be uncommon, there are times when civil cases can actually give rise to criminal offences. One such case where this might happen is in personal injury claims. Where a claimant in a personal injury case is proven to have been fundamentally dishonest, they not only lose the right to claim costs in the case, but they might also have their entire case dismissed. Moreover, being dishonest in court also opens up the possibility of criminal liability, typically that relating to fraud. In this article, we look at the meaning of fundamental dishonesty in personal injury claims and examine not only the potential civil implications (loss of a right to claim costs), but also how it might give rise to a charge of fraud in criminal law.

What is fundamental dishonesty in personal injury claims?

Fundamental dishonesty is only something that can be attributed to the claimant in a personal injury claim. In other words, it only relates to the person making the claim against, say, an insurer or other defendant, such as an employer. Defendants in personal injury claims are not subject to issues surrounding fundamental dishonesty (though if they lie in proceedings or otherwise mislead the court, they may be in violation of other laws not considered here).

Fundamental dishonesty arises in relation to the costs of bringing a personal injury claim, but it might also result in the entire claim being dismissed if fundamental dishonesty is established. On costs, note that claim costs might include lawyers’ fees, court applications, use of the court, and payment for expert witnesses. Usually, if a claimant loses their case in a personal injury claim, they are protected from having to pay these high costs through the principle of Qualified One-way Costs Shifting (QOCS). If, however, the claimant is found to have been fundamentally dishonest about something in their claim, they risk losing the protection of the QOCS principle and could therefore be forced to pay costs (which could be in the thousands or even millions, depending on the complexity of the case and the court in which it is taking place).

In these cases, fundamental dishonesty is given its ordinary meaning:

  • To be dishonest, the claimant must have acted in a way that ordinary reasonable people would consider to be dishonest, such as lying, exaggerating, or otherwise misconstruing the truth.
  • To count as ‘fundamental dishonesty’, the dishonesty must relate to something that is fundamental in the case, not simply something that was somehow tangential to it.

For example, if a personal injury claim relates to a back injury and the claimant lies, saying they have broken their back and will never walk again, wherein in reality they actually just bruised it badly and have an excellent chance of recovery after physiotherapy, that is fundamental to the case. If, however, the claimant was truthful about the extent of the injury and just ‘let the court believe’ that the injury resulted in them losing their job, when in fact the employer just told them to take time off, then the court may not consider this to be a ‘fundamental’ issue – merely one that relates to the extent of the financial harm suffered by the otherwise truthful injury.

Is fundamental dishonesty just exaggeration?

Fundamental dishonesty may be evidenced through exaggeration, or it may be evidenced through a number of other methods, such as straightforward lying, ‘bending the truth’, staying quiet on an issue, or manipulating details to give a false impression.

Exaggeration is a common form of fundamental dishonesty in personal injury claims because claimants often want to make out that their injury is worse than what it actually is, with the hope it will mean they get more compensation.

What are the consequences of fundamental dishonesty?

If you are found to have been fundamentally dishonest in a personal injury claim, two things could happen in the civil case:

  1. You could lose your protection against having to pay costs under the QOCS. This means that you could be liable to pay the entirety of the costs associated with your case, which may be a significant amount of money.
  2. The judge might decide that the dishonesty was so fundamental as to undermine the entirety of your case, and accordingly they may dismiss the case altogether (again, leaving you with costs to pay) and thus deny you the right to raise such a claim in a court of law again.

As mentioned, there may, however, also be criminal law implications in certain circumstances. The concept of dishonesty is central to the criminal law of fraud, and where the civil case was part of a broader scheme to defraud an individual or organisation, the fundamental dishonesty (once discovered) may give rise to a police investigation in and of itself, or it may be used as evidence as part of a broader investigation.

How does fundamental dishonesty relate to fraud?

If you are fundamentally dishonest in a personal injury claim, it is highly likely you are being so to cause yourself to make a gain (more compensation for an exaggerated injury, for example). This could be construed as fraud by false representation, which is an offence under Section 2 of the Fraud Act 2006.

Per the Fraud Act, fraud by false representation occurs when a person dishonestly makes a false representation intending to make a gain for him or herself or another, or to cause loss or the risk of loss to another. To prove the representation was false, the prosecution must show that the representation was untrue or misleading and that the person making the representation knew that it was untrue or misleading, or that it might be untrue or misleading.

In this case, ‘representation’ means any representation as to fact, law, or the state or mind of the person making the representation or another. Note, too, that the representation may be expressed or implied, so it is possible to commit this offence merely by remaining silent or otherwise skirting around the issue. Finally, the representation may be made in person, or it may be made via any communications device in any other form.

It is clear how being fundamentally dishonest in a personal injury claim may be evidence of a broader fraud. Examples could include:

  • An employee faking an injury to claim compensation from an employer
  • A person falsely accusing their neighbour of leaving construction materials outside their house, causing that person to trip and break their leg
  • An individual falsely reporting pain to a medical professional to lead them to write a report that is later used to explain the extent of an injury in a personal injury case, with the claimant hoping the injury will lead to more compensation

What happens if you are found guilty of fraud by false representation?

If you are found guilty of fraud by false representation due to fundamental dishonesty in a personal injury claim, you could face a prison sentence of up to 10 years, or a fine, or both. This punishment would be levied in addition to any civil consequences you could face, for example having to pay full court costs.

Only the most serious of cases will attract the hefty punishment of 10 years’ imprisonment. To come to a conclusion on just how serious your case is, the court will look at numerous factors, including:

  • The extent to which you planned the crime
  • Whether there was extensive set up and skill required to enact the fraud
  • The length of time over which the fraud was committed
  • Whether or not this was the first offence
  • The motivation for the crime
  • The amount of money or other value claimed
  • Whether the claimant was in a position of power or trust over the defendant
  • Whether gang activity was involved
  • The impact of the fraud on the victims of the crime
  • Any risk of physical or mental harm on others as a result of the crime
  • Any attempts to conceal or destroy evidence (acts that may give rise to other offences)
  • Whether the victim was vulnerably or otherwise specially targeted (for example, targeting a rich elderly neighbour, hoping they will just ‘pay away’ the problem)
  • Whether a false identity was used
  • Whether duress, insanity, involuntary intoxication, or other general criminal defence could apply

Where to get more help?

If you are concerned that a finding of fundamental dishonesty in a personal claim might give rise to criminal liability, get in touch with the experts at Stuart Miller Solicitors today. Our team has a diverse range of experiences navigating the complex world between civil and criminal cases and will understand exactly how to proceed if your dishonesty in one case is giving rise to criminal charges in another. Get in touch today for a free, confidential, and no obligation consultation.

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