The Motor Accident Solicitors Society (MASS) has said that the revised Criminal Justice & Courts Bill, which contains a new clause giving courts the power to dismiss a whole claim if they are satisfied that a claimant has been “fundamentally dishonest”, will create more problems than it seeks to solve.
Clause 45, which hands the courts the new power to throw out claims, was introduced during a House of Lords’ Committee Stage debate on 23 July.
MASS says that its concern lie in the fact that the concept of fundamental dishonesty is being phased in where the standard of proof is the balance of probabilities. It says that the definitions of the terms used will be open to interpretation and will require a great deal of clarification if injustices and inconsistencies between cases are to be avoided.
The Society said that some cases of fraud are easy to identify, but others can be as a result of misunderstandings, lack of information or genuine errors. Other cases, it said, may contain an element of exaggeration that is contested, potentially risking the entire claim. It is also worried that exaggeration could become a standard defence used by defendants, possibly leading to liability for the defendant’s costs, in excess of the notional value of the claimant’s genuine claim.
In addition, it said, a fundamental dishonesty decision could be reached via procedural applications without oral evidence.
“No defence can be made of outright examples of fraudulent and deliberate exaggerated claims," said Craig Budsworth, chair of MASS, "but as the fundamental dishonesty powers are drafted, there is the potential for all sorts of otherwise legitimate claims to be unjustly thrown out.
"The courts will require much greater clarification of the powers if injustices are to be avoided."