Fundamental Dishonesty in Clinical Negligence: Risks, Protection & Consequences

Introduction

Allegations of fundamental dishonesty can have serious consequences in clinical negligence claims, affecting claimants, costs and the decisions practitioners must make. However, inconsistencies in medical records, reported symptoms or expert evidence do not necessarily establish dishonesty.

This practical session will examine the statutory framework, key authorities and evidential challenges, exploring how to identify and investigate potential dishonesty, advise clients and respond to allegations appropriately.

It will consider the consequences of a finding of fundamental dishonesty, including dismissal of the claim under section 57 of the Criminal Justice and Courts Act 2015 and the potential loss of qualified one-way costs shifting (QOCS) protection.

Through practical examples and a worked case study, the session will equip you to recognise warning signs, make proportionate and defensible decisions and avoid pursuing unsustainable claims or making inadequately evidenced allegations.

What You Will Learn

This live and interactive course will cover the following:

• Understand the statutory framework governing fundamental dishonesty, including section 57 of the Criminal Justice and Courts Act 2015 and CPR 44.16
• Distinguish fundamental dishonesty from exaggeration, inconsistency, unreliable recollection and legitimate differences in medical opinion
• Apply the principles emerging from the leading authorities, including LOCOG v Sinfield, Howlett v Davies and Cojanu v Essex Partnership University NHS Trust
• Identify the particular evidential challenges arising in clinical negligence claims, including discrepancies between contemporaneous records, witness evidence, expert opinions and reported symptoms
• Assess potential dishonesty in claims involving pain, psychiatric injury, functional impairment, care requirements, prognosis and future loss
• Understand the importance of proper investigation, disclosure, contemporaneous evidence and the careful testing of inconsistencies before reaching conclusions
• Advise claimants and defendants on the evidential threshold, litigation risks and practical consequences of alleging or establishing fundamental dishonesty
• Understand the potential consequences under section 57, including dismissal of the claim, the substantial injustice exception and the court’s approach to genuine damages
• Consider the interaction between fundamental dishonesty and qualified one-way costs shifting, including the circumstances in which a costs order may be enforced
• Apply the principles to a practical clinical negligence scenario and identify the appropriate steps for solicitors and counsel
• Develop a practical checklist for managing suspected dishonesty from initial investigation through to trial and settlement

Recording of live sessions: Soon after the Learn Live session has taken place you will be able to go back and access the recording - should you wish to revisit the material discussed.