Andrew Constable: '˜Exaggerated' personal injury claims cannot be dismissed

Andrew Constable, Partner and specialist defence litigator in our Scotland Casualty team

He claimed the injury prevented him from working as a chef and he required assistance around the house. Although Mr Finlay accepted he was at fault for the accident he denied that Mr Grubb had been seriously injured. Mr Finlay advanced the argument that Mr Grubb was being fundamentally dishonest in the presentation of his claim and therefore the case should be dismissed.

He relied on a number of examples of Mr Grubb’s dishonesty, including that Mr Grubb had pretended to be his father in communication with insurers so that a cheque for the damaged car would be sent to him; he told doctors that he was unable to drive due to his injuries, but it was discovered that he had actually been convicted of driving without insurance on three occasions after the accident and he also told medical experts that he had been unable to return to work and his employment was terminated, when in fact he had been dismissed for gross misconduct.

In an effort to try and address apparent public concern over rising insurance premiums fuelled by spurious personal injury claims the government passed the Criminal Justice and Courts Act 2015. The Minister of Justice at the time, Lord Faulks, said there was “an epidemic of people claiming in circumstances that most right thinking people would find deeply unattractive”. Crucially, however, the Act does not apply in Scotland. The Act provides English and Welsh defenders with the defence of “fundamental dishonesty”.

Even if the court finds a person is entitled to damages as the result of an injury, where the court also finds the claimant has been fundamentally dishonest in advancing their claim, the case will be dismissed. The question which the Scottish courts required to answer was whether Mr Grubb had been fundamentally dishonest and, if so, could the court dismiss the case? After a trial lasting 20 days the court awarded Mr Grubb £6,000 plus interest. He had suffered an injury in the accident for which he should be compensated, albeit it was a minor injury.

The court refused to dismiss the case. However, recognising that Mr Grubb had shown a significant lack of candour in giving evidence, the defenders were awarded two thirds of the legal costs. Mr Findlay appealed the principal decision, and Mr Grubb appealed with regard to the decision regarding the costs.

Scotland’s appeal court was asked to rule on whether or not Mr Grubb’s claim should have been dismissed. Lord Carloway, delivered the opinion of the court and, upholding the original decision, refused to dismiss the case. He agreed that, as a matter of principle, a case can be dismissed summarily at any stage in proceedings but was not willing to provide guidance as to when this would be appropriate.

One factor to be weighed in such a decision is the question of whether or not a “fair trial” is possible. However a decision to dismiss must be a “last resort” and depends on the particular facts and circumstances of the case. The court decided that Mr Grubb had not been fundamentally dishonest. He had presented “a good, if exaggerated” claim and was therefore entitled to his damages. The defenders’ appeal failed.

The pursuer’s appeal with regard to the legal costs also failed, the court finding that no miscarriage of justice had occurred. The decision leaves the law in Scotland at odds with the situation in England and claimants might be encouraged that their claim will still succeed in part even if they are found to have been exaggerating. However, they should be aware that they may be found liable for the time and expense caused by that exaggeration.

Andrew Constable, partner and specialist defence litigator in our Scotland Casualty team