'Incredible' evidence can have serious implications - Kelly Brotherhood

When the Scottish Parliament was legislating to give qualified protection from an award of costs to claimants in personal injury litigation, even when they lose their case, they provided for the claimant to lose the protection if they make, in the opinion of the court on the balance of probabilities, “a fraudulent representation”.

Our counter-fraud teams south of the border have secured costs orders of up to £50,000 against claimants in the most egregious cases of dishonesty in personal injury claims since qualified one-way costs shifting was introduced in England and Wales in 2013. While questions remained about how this would work in Scotland, we are beginning to find out what it means in practice.

In February, in the first reported case on fraudulent representation in this context, the sheriff held that, for a fraudulent representation, the court would need to make a finding that a claimant “had acted intentionally to mislead the court”. In this case, the court had not found the claimant’s evidence “incredible” or “deliberately untrue”, so there had been no fraudulent representation. “Incredible” in this context, means “impossible to believe” – not “wonderful”.

A witness’s evidence in court may be unreliable but not incredible. This would apply where, for example, other factors cast doubt on the accuracy of the witness’s evidence but without completely undermining its potential veracity. Where a witness’s evidence in court is incredible, other factors mean what the witness has said simply cannot be true.

Kelly Brotherhood is a Senior Associate, Clyde & Co (Picture: Mike Ellis)

In a case heard at proof, or evidential trial, at the All-Scotland Personal Injury Court in August 2023, the sheriff found in favour of the defender and, in doing so, found the claimant’s evidence on the circumstances of an incident incredible. This presented an opportunity for the defender to apply to the court for an award of costs in their favour against the claimant.

When the defender took up this opportunity, the sheriff held that the claimant had made a fraudulent representation and it was appropriate to award costs in favour of the defender against the claimant. The only conclusion that could legitimately be drawn was that the claimant had intentionally misled the court. In particular, the claimant had made a fraudulent representation “by lying about the circumstances of the accident”.

It is possible a claimant who gives “incredible evidence” might not have made a fraudulent representation. A claimant might be delusional and genuinely believe the false, or incredible, evidence they give to be the truth. So, there are at least two layers of relevant questions to be asked and answered in the context of fraudulent representations: (1) the credibility question – was the evidence capable of being believed? and (2) the intention question – was the evidence given to intentionally mislead the court or was the claimant labouring under a delusion by which they considered their evidence to be the truth?

There is another question for a Scottish court even where there is found to have been “a fraudulent representation” for costs purposes; should an award of costs be made against the claimant because of the fraudulent representation? Even in the event of a fraudulent representation, the decision on whether to award costs against the claimant is at the court’s discretion.

As the proverb goes, honesty is the best policy. The outcome of the August case referred to shows that dishonesty by a claimant in personal injury litigation can have consequences on costs.

Kelly Brotherhood is a Senior Associate, Clyde & Co