SECTION 57 AND FUNDAMENTAL DISHONESTY: A HARD LINE TAKEN: THREE RECENT CASES

Here the High Court then gave some useful guidance on a court’s task in dealing with an application under section 57.

“38. The first stage for the court when considering an application under section 57 is to decide whether, on a balance of probabilities, the defendant has established that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim. The judge was not satisfied that this was the case. On the facts and the evidence presented to him, it cannot be said that this was not a decision open to him. The issue of dishonesty is akin to a jury question. In the case of a civil trial before a judge alone, it is a matter for the trial judge who has seen and heard all the evidence unless some material flaw in approach or his analysis can be identified.”

Kerry Underwood

The whole issue of Section 57 is dealt with at length in my book – Qualified One-Way Costs Shifting, Section 57 and Set-Off– Available here for £15 including P&P

There have been three recent and important High Court decisions in relation to how the fundamental dishonesty test under section 57 of the Criminal Justice and Courts Act 2015 should be applied.

That section requires a court to dismiss an otherwise valid personal injury claim if the claimant has been fundamentally dishonest in relation to the claim unless the claimant would suffer substantial injustice if the claim was dismissed.

It only applies to cases issued on or after 13 April 2015 and covers counterclaims as well.

The full text of section 57 and the Explanatory Notes are set out at the end of this piece.

In Ivey v Genting Casinos Limited (trading as Crockfords Club) [2017] 3 WLR 1212

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