Trial judges can make findings of ‘fundamental dishonesty’ even if it has not been specifically alleged, the Court of Appeal has held.
Howlett v Davies and Ageas Insurance [2017] EWCA Civ 1696 is the first case to consider the meaning of fundamental dishonesty since the Jackson reforms.
The Howletts were passengers in a car driven by Davies, who was insured by Ageas. Ageas did not expressly plead that the claim was fraudulent or ‘fundamentally dishonest’ but did cast doubt on the veracity of the claim.
The trial judge dismissed the claims and found them to be ‘fundamentally dishonest’. He gave permission for a costs order to be brought against the claimants, as an exception to QOCS (qualified one-way costs shifting).
The claimants appealed, arguing that the judge could not make a finding of fundamental dishonesty as that allegation had neither been raised in the defence nor adequately dealt with in cross examination.
Handing down judgment this week, however, the Court of Appeal unanimously dismissed the appeal, stating that the claimant knew issues of credibility and honesty would be dealt with, and that
