In our latest blog, current pupil Millicent North looks at case of Morris v Williams and the topic of Fundamental Dishonesty in personal injury law.
Fundamental dishonesty is referred to both in the Criminal Justice and Courts Act 2015 and CPR 44.16 but is not defined in either, leaving the court to determine its scope and meaning. There has been a wealth of consideration and guidance precipitated by Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67. It is settled law that it is for the Defendant to prove, on the balance of probabilities, that:
- After the subjective state of mind of the Claimant, an ordinary person would consider their conduct dishonest, and;
- The dishonesty forms either the whole of, or substantially affects, the claim.
The recent case of Morris v Williams [2025] EWHC 218 (KB) involved a Claimant who was seeking to recover damages for personal injuries allegedly sustained in a road traffic accident. Liability was admitted by the Defendant; causation and quantum remained in issue, and the Defendant alleged fundamental dishonesty, asserting that the Claimant had exaggerated the effect and extent of his injuries. As in many fundamental dishonesty cases, the Defendant relied in part on surveillance footage obtained of the Claimant.
A thorn in this case presented itself as the Defendant also sought to rely upon a letter written by the Claimant to the Defendant titled ‘Without Prejudice – save as to costs’. The letter detailed an offer, one of the terms of which was “that the Claimant will admit that he was fundamentally dishonest in respect of some of the representations made in respect of his claim…”. The Defendant sought orders compelling the Claimant to respond to a Part 18 request, and to adduce the letter as evidence demonstrating fundamental dishonesty on the part of the Claimant.
Two key issues arose for District Judge Dodsworth, sitting in the High Court, to address:
- How does fundamental dishonesty affect the ‘without prejudice’ veil?;
- What amounts to an admission of fundamental dishonesty?
(1) How does fundamental dishonesty affect the ‘without prejudice’ veil?
The Claimant in Morris sent the correspondence under the impression that the contents of the letter would not be admissible at trial and could not be used to establish an admission or a partial admission. However, the ‘without prejudice’ rule is not absolute and DJ Dodsworth found that, whilst the letter would normally attract the privilege, it fell under an exception to the rule in that it attempted to cloak unambiguous impropriety on the part of the Claimant.
DJ Dodsworth went on to say that “should the letter be excluded, the Claimant would not only perjure himself but put forward his pleaded case on a (at least partly) false basis” (Morris, paragraph 21). This demonstrates fundamental dishonesty will cause the veil of ‘without prejudice’ to fall, and will be treated with the utmost seriousness by the Court.
(2) What amounts to an admission of fundamental dishonesty?
Taking the test in Ivey, it is clear here that the Claimant was subjectively dishonest and that an ordinary person would also appreciate his conduct to be dishonest. It is quite the admission the Claimant was prepared to make of “fundamental dishonesty in respect of some of the representations made in respect of his claim”. Case law has made clear that dishonesty will be fundamental if it goes to the root or to the heart of the claim (London Organising Committee of the Olympic and Paralympic Games -v- Haydn Sinfield [2018] EWHC 51 QB).
Taking that analysis, DJ Dodsworth found that “the admission contained in the letter went well beyond say an acceptance that the Claimant has over-egged his injuries, or their effects on his day to day activities…but that a line has been crossed” (Morris, paragraph 21). Thus, correspondence which purported an admission, even if that offer was not accepted, was held to be determinative that the Claimant was fundamentally dishonest in his presentation of the claim.
Comment
As reported for many years, claimant solicitors should be aware of any possible allegations of fundamental dishonesty from the outset of the claim and ought to advise clients of the same as soon as reasonably practicable. Surveillance evidence is becoming ever more common, and the effects of fundamental dishonesty can be catastrophic both on the prospect of the claim and the Claimant themselves. Any correspondence with the Defendant should be closely guarded, and whilst a desire to settle matters is admirable it should not come at the expense of compromising the Claimant’s case.
Findings of fundamental dishonesty seem to be ever rising, and as confirmed in this decision, any purported admission of fundamental dishonesty must be carefully considered, even in seemingly privileged correspondence.
Millicent North is a current Personal Injury Law pupil at 18 St John Street Chambers, under the supervision of Elahe Youshani. For more information on Millicent, Elahe and the members of the Personal Injury, Clinical Negligence and Costs Department at 18 St John Street, please contact Senior Clerk Katie Brown or a member of the clerking team on 0161 278 1800 or email pi@18sjs.com.