Menary v Darnton (yet to be published) concerned a whiplash claim. The claimant said a motorcyclist rode into the rear of his car, causing injury and loss. The motorcyclist said no collision took place—his bike fell to the ground while he took evasive action. The insurers argued the claim was entirely fabricated since no impact took place.
The county court at first instance found there was no collision but also that there was no fundamental dishonesty since the claimant had a history of back pain and so had not lied to the doctor.
On appeal to a circuit judge, Judge Hughes found the initial judgment incorrect and ruled that, by presenting a claim when there was no accident, there was clearly fundamental dishonesty.
Judge Hughes found that “the documents produced were indirectly manufactured by the claimant in pursuit of a claim which had no basis in fact or reality”.
“He did not invent an additional head of damage in an otherwise legitimate claim. It was dishonest in inception and pursued with the intention to take money from the defendant’s insurers,” he added.
According to Keoghs solicitors, who acted for Aviva, the insurer, the decision sets a precedent that whether the claim or the claimant is fundamentally dishonest, the outcome should be the same.
Damian Ward, fraud partner at Keoghs, said: “This is a significant judgment which now allows us to say that dishonest claims must result in a finding of fundamental dishonesty and therefore the dis-application of qualified one-way costs shifting, allowing costs to be enforced. If in rare circumstances that dishonesty does not taint the claimant, the enabler is then in the firing line to pay those costs.”Article care of the new law journal, and can be found here https://www.newlawjournal.co.uk/content/dishonesty-defined-court