'Lies, damned lies and … strike-outs’: Access to justice and the new duty to strike out ‘fundamentally dishonest’ claims in their entirety

What consequences should face a claimant in a personal injury claim, where the claimant has been determined by a court to have included a dishonest element in his claim? Should the entirety of the claimant’s claim be struck out as abusing the process of the court and being an affront to the civil justice system, or should a more nuanced approach be taken to reflect the causative potency of the dishonesty and the punishment lie in adverse costs consequences. This is a question which has vexed first instance and appellate courts in recent years, including the United Kingdom Supreme Court in Summers v Fairclough Homes Limited [2012] UKSC 26. The position of the United Kingdom Government has been to legislate. Proposals in the Criminal Justice and Courts Bill seek to enact the Government’s legislative objective to require the courts to dismiss, in their entirety, claims for damages in personal injury claims where the claimant is adjudged by the court to have been ‘fundamentally dishonest.’ This models follows the legislative approach by the Irish Republic in the Civil Liability and Courts Act 2004. Are there adequate safeguards to protect the interests of genuine claimants in achieving access to justice in personal injury litigation, where the ‘polluter’ has historically been responsible for the consequences of their admitted or found breach of duty? At what point does the imposition of a sanction in respect of dishonesty become disproportionately unfair? What are the opportunities, threats and impacts on the behaviours of claimants, defendants and their advisers and funders? How well-equipped are the constraints of the modern, post-Jackson claims processes, including dispute resolution portals, to deal with these issues? It remains to be seen how strong the Government’s appetite is to expand this regime beyond personal injury claims. This paper aims to explore some of these topical issues.