Substantial injustice – a ‘get out of jail free’ card?

Michael Bickerstaffe takes a look at the situation where a claimant, pursuing an injury claim, has been found fundamentally dishonest and tries to prevent dismissal of the claim.

If the court finds a claimant fundamentally dishonest,Section 57 of the Criminal Justice and Courts Act 2015 states that a court must dismiss the entirely of the claim, including any genuine part, unless:

…the court is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.

This gives a dishonest claimant one last opportunity to avoid seeing their claim dismissed.

Potentially this is of great importance as a compensator’s efforts to investigate, evidence and ultimately challenge the fraudulent claim at trial could all be wasted.

But what does ‘substantial injustice' mean? Is it a ‘get out of jail free’ card for a claimant?

It is not defined in the legislation.

Judges have been invited by claimants to define the term, but they have refused, save to say that ‘substantial injustice’ has to be more than a mere loss of the genuine part of the claim. That case is discussed by my colleague here.

There have been several other challenges:

  • To dismiss the claim would prevent a dishonest claimant from securing the care he needed for the rest of his life
  • A £100k interim payment was used to purchase a house that would have to be sold
  • An apology for the dishonesty
  •  The defendant relied upon a witness that changed his evidence which was comparable to the claimant’s own dishonesty, considered by my colleagues, here.

All of these attempts, under full judicial scrutiny, were met with a refusal to do anything other than dismiss the entire claim including the genuine elements. 

There is consistent reasoning applied by judges when reaching the same decision in these cases; and that is to prevent a dishonest claimant from recovering damages. 

That reasoning is based on the overriding purpose of section 57 as stated by the Government. 

If we look at the comments made in Parliament before the Act was made law: 

The Government simply do not believe that people who behave in a fundamentally dishonest way…by grossly exaggerating their own claim or colluding should be allowed to benefit by getting compensation in spite of their deceit. Committee of the Whole House on the Bill for the Act in the House of Lords

The ‘substantial injustice’ inclusion was designed to give judges some flexibility to apply the law fairly and proportionately, but not to offer a wide discretion. 

The overriding purpose of section 57 is to move away from the prior situation where a dishonest claimant was able to recover damages for the genuine parts of the claim. That is resonating with judges despite a number of challenges. 

Without a working definition of ‘substantial injustice,’ it becomes harder for a dishonest claimant and those enabling the claim, to build a case to successfully argue the point and avoid the dismissal of the entire claim.  

No doubt there will be further challenges but it is becoming increasingly difficult to see what could amount to ‘substantial injustice’ to allow a dishonest claimant to avoid seeing their claim dismissed.

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