Fundamental Dishonesty in Relation to Claim

September 20th, 2021

The central issue in Elgamal v Westminster City Council (2021) EWHC 2510 (Admin) was whether the Claimant had on the balance of probabilities been fundamentally dishonest in relation to his personal injury claim against the Council and accordingly the provisions of Section 57 of the Criminal Justice and Courts Act 2015 were applicable. Jacobs J. said:-

“61. The case law shows that the statutory requirement of “fundamental dishonesty” requires separate consideration of two questions: whether there was dishonesty, and whether it was fundamental.  The Act refers to the claimant being fundamentally dishonest, rather than the claim.  However, it will be rare for a claim to be fundamentally dishonest without the claimant also being fundamentally dishonest: …

62. The requirement for dishonesty is to be determined in accordance with the principles in Ivey v Genting Casinos Limited (t/a Crockfords Club) [2017] UKSC 67. In summary, whilst dishonesty is a subjective state of mine, the standard by which the law determines whether that state of mind is dishonest is an objective one.  Thus, if by ordinary standards a defendant’s mental state is dishonest, it is irrelevant that the defendant judges by different standards. …

63. Where there is fundamental dishonesty in the presentation of a claim in the early stages of the proceedings, the claimant is likely to be regarded as fundamentally dishonest even if the dishonest aspects of the claim are not persisted in: …

64. As shown by the review of the authorities in Locog, the requirement that the dishonesty should be “fundamental” has been described in different language by various judges. It is, however, often said that the dishonesty must go to the root or the heart of the claim.”

“70. … The relevant statutory word is “fundamental”. That is the only statutory word, and paragraphs [62] and [63] in Locog should not be read as though they are a substitute for it. … J explained in paragraph [63], he was seeking to capture the same idea as the expressions “going to the root” or “going to the heart” of the claim. In my view, those expressions to sufficiently capture the meaning of “fundamental” in the present context, and the difference between conduct which is (as Martin Spencer J said in paragraph [20] of Pegg) “merely” dishonest and fundamentally dishonest.

72. Ultimately, it seems to me that the question of whether the relevant dishonesty was sufficiently fundamental should be, and is, really a straightforward “jury” question: … it is a question of fact and degree in each case as to whether the dishonesty went to the heart of the claim. That must involve considering the dishonesty relied upon, and the nature of the claim – both on liability and quantum – which was actually being advanced.

73. I accept that, in this context, the court is concerned with the potential impact of the dishonesty on the claim actually made. …”

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