False Claims And The Dishonest Litigant

The UK adversarial legal system expects and encourages the parties engaged in litigation to pursue their case as forcefully as they can. One of the consequences of this however can be for one party to overstep the boundary mark and resort to dishonest means. This might be by fabricating evidence, forging or destroying documents or just simply lying. The question will then arise as to the approach the court will take in response to such dishonest conduct.

If a claimant brings a claim to court reliant on facts which can be shown to be false the defendant is likely to want to have the claim struck out. The court will not however automatically grant such an application. The court will consider whether there is sufficient other evidence to maintain a claim if the tainted evidence is excluded. The claim will not be struck out simply because the claimant has told an untruth. It is only where there is insufficient evidence to support a claim once the false evidence has been excluded that the court will strike out the proceedings.

Notwithstanding these general principles, the Court of Appeal in the recent case of Arrow Nominees v Blackledge has held: where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice the court is entitledindeed, I would hold boundto refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him.

There will also be cases of genuine claims but where a party through dishonest means tries to inflate the damages sought.

The case of Shah v Ul Haq is an example the court's approach. This was a road traffic accident claim where the claimant sought damages for a person who was not in the car at the time of the accident. An application was made to strike out the claim. This was refused by the Court Of Appeal on the basis that a fair trial was possible and that there was a valid claim even with the dishonest part excluded. The purpose of a striking out order was not to punish reprehensible behaviour but to avoid unnecessary expense on cases which have no chance of succeeding and to prevent unsafe judgements. There are other tools available to the court to punish a dishonest litigant.

One such tool will be the courts wide discretion as to the costs awarded to the successful party. It may well be expected that a party who has been shown to have acted dishonestly and thereby put his opponent to additional cost will be penalised in being ordered to pay the honest parties costs. Very often costs will be ordered on an indemnity basis against the dishonest party and it can be expected that he will be ordered to pay such costs in any event as have been incurred by reason of the dishonestly.

Another possibility could be an action for perjury and contempt of court. Contempt of court proceedings can be brought when a false statement under a statement of truth has been made. If proven this can result in a prison sentence and at the very least a fine. It will be necessary to prove beyond reasonable doubt that there has been an attempt to interfere with the course of justice. Remember always that it is necessary to obtain the permission of the court before bringing contempt proceedings.

The question is therefore what you should do if you are involved in a claim with a dishonest opponent? The best answer is not always to apply to have the case struck out. An application to strike out could involve you taking your eye off the ball in preparing your case. If your application is not successful you are likely to have to pay your dishonest opponents costs and you will also give him a moral victory. Probably the best course is to - keep your powder dry - and wait for the trial. If when the matter comes to trial you can show that your opponent is a liar and his evidence cannot be relied upon, you are well on the way to victory.