Horwich Farrelly and Aviva win 'landmark' fundamental dishonesty appeal

Horwich Farrelly in conjunction with Aviva has won an appeal that could transform how courts interpret legislation on fundamental dishonesty.

This could help avoid any damages being awarded to claimants that are dishonest.

It has the potential to save the industry significant amounts and increase the effectiveness of section 57 as a fraud deterrent.

The case

Basir v Larizadeh went to trial in May 2018 following a motor incident which saw Basir – the claimant, present claims for personal injury as well as special damages for vehicle damage and credit hire.

The judge ruled that Basir’s claims for personal injury were “wholly unbelievable in relation to injuries” and therefore fundamentally dishonest.

Basir was awarded £1,824 for credit hire as well as costs.

Section 57

Unhappy with the outcome the law firm appealed on behalf of Aviva that the decision on the basis that the law on Section 57 had been misapplied.

The appeal hearing took place in Central London County court before His Honour Judge Saunders.

It was found that the trial judge had been wrong in his interpretation of Section 57 and had misinterpreted the legislation by awarding the claimant damages for the credit hire claim.

Judge Saunders allowed the appeal and dismissed the whole claim.

He commented that the decision of the lower court would give “perverse results where a claimant who had completely fabricated their claim for personal injuries would be in a better position in claiming for vehicle damages than a claimant who had merely exaggerated their injuries.”

Section 57 can be applied to the whole of the claim, and any damages claimed in the proceedings can be dismissed on a finding of fundament.

Deterrent

Jared Mallinson, partner at Horwich Farrelly said although Section 57 is “poorly drafted and at times confusing” it is open to some interpretation.

“In finding that this argument is wrong, this judgment increases the effectiveness of Section as a deterrent to fraudulent claims because fraudsters can no longer expect to recover some damages even if they are found to be fundamentally dishonest.

“This ruling can be applied in future cases to ensure that both consumers and insurers benefit from the costs saved on unmerited claims.

“The courts are, in the main, applying an eminently sensible approach in dismissing the entire claim when part of an injury claim is dishonest, no matter the make-up of special damages.”

Mallinson added that it is “crucial that the courts apply the ruling correctly” to avoid cases where claimants can be found to be fundamentally dishonest yet still be awarded damages.