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Fraudulent claims; are England and Scotland moving in different directions? - Kate Donachie, Brodies LLP

24/04/19. In a time of significant change to the civil litigation system, the approach to fraudulent exaggeration of insurance claims is diverging North and South of the border. This combination of developments may lead to a perfect storm for fraudulent claims in Scotland.

In England and Wales, the treatment of fraudulent cases is set out in statute; in Scotland the courts are bound to interpret and apply the common law. Recent cases put the consequences of those different approaches into sharp focus.

In England and Wales, section 57 of the Criminal Justice and Courts Act 2015 requires the courts to dismiss in its entirety, any claim in which the claimant is held to have acted with “fundamental dishonesty”. In LOCOG v Sinfield [2018] EWHC 51 (QB) it was concluded that fundamental dishonesty was established if the dishonesty “substantially affected the presentation of its case… in a way which adversely affected the defendant in a significant way.” This approach was applied in Pinkus v Direct Line [2018] EWHC 1671 (QB) where, although the judge accepted that there had been some injury; the entire claim was dismissed because the claimant’s significant exaggeration rendered him...

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