It is now almost four years since section 57 of the Criminal Justice and Courts Act 2015 (CJCA) introduced the concept of fundamental dishonesty. This has provided defendants with a useful weapon when dealing with dishonest claimants.

Whilst it is not a regular occurrence, there have been a few recent cases where guidance has been provided on when a court is likely to dismiss a claim due to part or all of it being fundamentally dishonest.

For example, in the case of London Organising Committee for the Olympic and Paralympic Games (in Liquidation) v Sinfield, Mr Justice Julian Knowles ruled that the claimant had been fundamentally dishonest by exaggerating costs of gardening help he required following his accident.

Mr Justice Knowles stated that a claimant should be found to be fundamentally dishonest if the defendant could prove ‘on a balance of probabilities’ that the claimant had acted dishonestly in relation to the primary or related claim. He went on to say that the dishonesty was such that it ‘substantially affected the presentation of his case, either in respects of liability or quantum, in a way which potentially adversely affected the defendant in a significant way’.

He also stated that the fact the main part of the claim may be genuine is 'neither here nor there' where the court finds fundamental dishonesty.

Should defendants have evidence of fundamental dishonesty, they can request the court dismiss the claimant’s claim and award costs against the claimant. Some claimant representatives are concerned that, particularly in lower value claims, the mere suggestion of fundamental dishonesty by a defendant against a claimant, with the cost risk associated, may scare off legitimate claimants from pursuing genuine claims.

Of particular concern to the travel industry is the rising number of sickness claims, perhaps linked to the ‘whiplash reforms’ and CMCs looking to diversify. The Solicitors Regulation Authority, in a warning notice of 6 September 2017, stated that ‘holiday claims provide an example of our concern that some law firms fail to engage properly, or sometimes at all, with the merits of their clients' cases. This is of particular concern where there is evidence to suggest that the claim is false or dubious in some way. We are clear in our view that lawyers should not bring cases, or continue with them, where there is a serious concern about the honesty or reliability of the evidence’.

In the last year the travel trade has adopted a co-ordinated and robust approach to any questionable claims and successfully raised allegations of fundamental dishonesty on numerous cases.

As always, the facts of each case must be carefully considered to include any evidence such as holiday photos and social media posts. For claimants to be successful, they must rely on credible medico-legal evidence that makes a causal connection between the alleged illness and any negligence on the part of the hotel.