Worrying Fundamental Dishonesty tactic being employed by more defendants, says Express Solicitors

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Express Solicitors has said that a worrying tactic has emerged of defendants increasingly alleging Fundamental Dishonesty when a claim is unsuccessful.

The firm has raised the issue after helping overturn a ruling of Fundamental Dishonesty for a claimant who says she was injured after slipping on the floor in a La Tasca restaurant.

“Our client’s integrity was attacked and she was branded as a liar. I am pleased we successfully challenged this finding of Fundamental Dishonesty,” said James Maxey, the managing partner of Express Solicitors (pictured).

“This is a worrying tactic being deployed by Defendants were a Claimant simply fails to prove their claim at Trial. If every time a Claimant loses a case the Defendant alleges FD the costs of cases will be greatly increased by Claimant’s seeking to appeal any such findings.”

In Meadows v La Tasca, the claimant she alleged that she had slipped and fallen in the defendant’s restaurant on a greasy substance on the floor. The Defendant argued they had no record of the accident and had a system of cleaning in the restaurant to prevent such accidents. District Judge Khan sitting at Manchester County Court found against the claimant.

As Express Solicitors was retained on a post-April 2013 CFA, the defendant was only able to enforce their costs with leave of the Court.

Following Judgment in their favour, the defendant’s barrister made an oral application that the claimant’s claim was fundamentally dishonest. District Judge Khan permitted the defendant’s application ruling the Claimant had been dishonest.

Consequently qualified one way costs shifting was not applied and the Defendant was permitted to enforce their costs against the claimant. The finding of fundamental dishonesty had additional implications in that it negated the claimant’s ATE policy, resulting in her becoming personally responsible for her disbursements as well as the defendant’s costs.

The claimant was faced with a liability for the defendant’s costs in the sum of £7,210.

Express Solicitors lodged an appeal on the basis that the judge had erred in concluding that the claim was fundamentally dishonest.

Mr Sufiyan Rana of St Johns Building’s Manchester was instructed to act on behalf of the claimant for both the main action and the appeal.

The appeal was granted and the finding was overturned. The order for the claimant to pay the defendant’s costs was also overturned. The court ordered the defendant to pay the claimant’s costs of the appeal.

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Marek Handzel

Marek Handzel is the editor of Claims Magazine. Marek welcomes articles, letters, or feedback from readers and can be reached by emailing marek.handzel@barkerbrooks.co.uk

  • Pro Bono

    But does this mean that the insurers can set off the £7,210 costs of the original action? If so, the claimant is still heavily out of pocket.