Let’s be honest, it’s time to get tougher on claimants who lie

Indeed, so impressed was Robert Burns by the Englishman Alexander Pope’s observation that “An honest man’s the noblest work of God” that he included this quote in his poem The Cotter’s Saturday Night. We may take it as read, then, that both England & Wales and Scotland should place the highest weight on the value of honesty. However, things are still currently different between these two legal territories in the approach to, and implications of, dishonesty in personal injury claims.

For more than 11 years, England & Wales have had a statutory provision that, where a personal injury claimant has been fundamentally dishonest in relation to their claim, the court should strike that claim out unless doing so would cause substantial injustice. Scotland does not have such a provision.

Without a Scottish statutory provision on fundamental dishonesty of the claimant, Scotland has been more forgiving of dishonest claimants in focusing not on whether they have been dishonest but on whether their whole claim is. For example, a Scottish appeal court observed, in 2018, in upholding a decision not to dismiss a claim for claimant dishonesty, that the claimant “did not make a fundamentally dishonest claim. He made a good, if exaggerated, claim”. Exaggerated, to put it mildly, indeed - the claimant sued for half a million pounds and was awarded £6,000

This year, in a different case, a Scottish judge, bound by the appeal court authority, held that “There is material, in the form of surveillance footage which…confirm(s) that (the claimant) has lied to expert witnesses, both his own and the defender’s, about his current capabilities”. Nonetheless, the claim was allowed to continue, with the claimant ordered to give an honest account to the experts. If this had been an English, not a Scottish, case, there would have been a good case for it to have been struck out because of the statutory fundamental dishonesty provision there.

We have no doubt Scotland can, and should, hold personal injury claimants to higher standards of honesty, by the Scottish Parliament enacting an equivalent legislative provision for Scotland to “strike-out” for fundamental dishonesty.

It surely respects better the Scottish court process, and our court system, for our focus to be on whether a claimant has been fundamentally dishonest than on whether their whole claim is. Why should it be for the court to sift out claimant lies then try to work out whether a sufficiency of truth remains to support the claim as sifted down? By not properly penalising claimants for dishonesty, could our current system even be considered as condoning, or at least not sufficiently discouraging, lies?

We could not agree more with Pope’s and Burns’ sentiment that, brought more up to date, “An honest person’s the noblest work of God or humanity”. We firmly believe the Scottish Parliament should enact a fundamental dishonesty provision in Scottish personal injury claims legislation to require more of claimants on honesty than our system currently does.

Kelly Brotherhood is a legal director, Clyde & Co. This article was co-written by Vikki Melville, managing partner for Scotland, Clyde & Co