PI Brief Update

Legal Mind Case and Commentary No. 37: Legal Mind Cases on Dishonesty - [Koch, H.C.H., Jansen, F.; Savage., J; Aldridge, M. & Nokling, K. February, 2022]

The key outcomes of these three cases from an evidential reliability point of view were: -

1. Occasional blaming of solicitor for the inconsistences in evidence

2. Finding a claimant honest despite inconsistencies in evidence

3. Attributing inconsistency to a lack of claimant understanding

4. Finding a claim to be dishonest/unreliable but a claimant not – the claim not the claimant

5. Potential complicity by a claimant with their solicitor

6. The need to for cross-examination in Court to adjudicate on honesty

7. Difficulties appealing a case of claimant honesty when witnesses giving evidence have not been seen (on appeal). There is a significant hurdle in persuading an appeal court to overturn a decision based on hearing oral evidence (Robinson N, 2022)

8. Inaccurate pleading or defective disclosure is not synonymous with the respondent’s fundamental dishonesty

9. Requirement to serve an amended Defence setting out allegations of fundamental dishonesty. It is right and fair that a claimant knows the case they have to meet (Williams C, 2022)

10. Exaggeration of evidence maybe conscious or unconscious – the difference needs to be explored at trial

11. A ‘scattergun’ approach to make multiple hints in almost every defence that a claim is or may be fundamentally dishonest, based at times on the slimmest possible argument is deprecated.

Davy (2022) argued that unless a defendant has cogent evidence to support a pleading of fundamental dishonesty, the safest course is to give the claimant warning of the intention to challenge his/her credibility but not to refer to ‘fundamental dishonesty’ as such.

These three cases plus other similar cases referred to in Koch (2022) illustrate the several different issues in adjudicating on evidential reliability. They do not as yet help to differentiate between conscious exaggeration/dishonesty and ‘unconscious magnification’; a common psychological phenomenon. As the volume of cases reported under this heading (fundamental dishonesty) increase, this will hopefully be clarified.

Prof. Hugh Koch, Dr Justin Savage, Dr Mari Aldridge and Dr Kirsten Nokling are all members of HK Associates.

Professor Koch is visiting professor in Law and Psychology at Birmingham City University.

Dr Friso Jansen, Senior Lecturer in Law, Birmingham City University.

Davy. P. (2022). Pleading fundamental dishonesty – Mustard v. Flower [2021]. EWHC 846 (QB).

Koch, H.C.H. (2016). Legal Mind: Contemporary Issues in Psychological Injury and Law. Expert Witness Publications. Manchester.

Koch, H.C.H. (2018). From Therapist’s Chair to Courtroom: Understanding Tort law Psychology. Expert Witness Publications. Manchester.

Koch, H.C.H. (2019). Legal Mind Case and Commentary: Publication Directory. LCB Publishing. Manchester.

Koch, H.C.H. (2022). Unreliability and dishonesty: A review of recent case law and dilemmas. EWI Newsletter, Spring (in press).

Robinson, N. (2022). Fundamental Dishonesty: Michael v. IE and D Hurford Ltd [2021] EWHC 2318 (QB)

Williams, C. (2022). Further developments on pleading fundamental dishonesty. Ropewalk Personal Injury Blog. January.

Koch, H.C.H., Jansen, F., Grace, J., Gill, I. & Huntley, F. (2021). Legal Mind Case and Commentary No. 36 Levels of unreliability in chronic pain. PIBULJ. October 2021.

Koch, H.C.H., Aldridge, M., Grace, J. & Jansen, F. (2021). Legal Mind Case and Commentary No. 35 A reasonable expert, please? PIBULJ. July 2021.

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