Neil Rowe, Head of Practice at Maulin Law, looks at the high-stakes outcomes in two recent fundamental dishonesty judgments.

Introduction

In clinical negligence and personal injury litigation, an allegation of “fundamental dishonesty” (FD) under the Criminal Justice and Courts Act 2015 (s.57) is a weapon for defendants – but a double-edged one. If successfully made, it allows a defendant to dismiss the claim and recover full costs; if unsuccessfully pursued, even a winning defendant can suffer cost sanctions.

Two recent High Court judgments – Hakmi v East & North Hertfordshire NHS Trust & Anor (2025) and Zakia Din v Aviva Insurance Ltd (26 September 2025) – illustrate the stark contrast in potential cost outcomes from a defendant’s perspective.

Case 1: Hakmi v East & North Hertfordshire NHS Trust & Anor (2025)

Brief facts: The claimant, a consultant orthopaedic surgeon, alleged that after a second stroke the hospital defendants failed to offer thrombolysis, resulting in serious disability. Quantum was agreed at c.£1m subject to liability. The defence denied negligence and causation and also pleaded FD: it alleged the claimant deliberately under-performed neuro-psychological tests to bolster his claim. At trial, the defendant won: the court found the claim failed on causation; even if thrombolysis had been offered, the outcome would probably not have improved.

Evidence of exaggeration / dishonesty: what was advanced and the court’s analysis
The defendants contended that the claimant manipulated the neuro‐psychological testing: e.g., intentionally performing poorly in cognitive assessments, leading to an inflated picture of impairment. The court noted the five requirements under s 57: pleading, burden on defendant, finding of dishonesty, that it be fundamental (not incidental) and that it substantially affect the presentation of the claim. However, the judge found that the poor performance could be explained by organic effects of the stroke, fatigue from family issues and psychological reaction – not deliberate malingering. In short, the evidence did not support the inference of dishonesty to the civil standard.

Additionally, because the claimant was a medical professional of high standing, the court considered the reputational impact of an FD finding on him. The fact the evidence was “increasingly wanting” yet the allegation was pursued to the end was reported to contribute to the costs decision.

Judgment & costs orders
While the claim failed on liability/causation, the FD allegation itself also failed. On costs the court ordered:

  • The claimant to pay the defendant’s costs of the action—but not to be enforced without leave of the court. Presumably the defendant will now need to pursue the enforcement and means assessment process – and recovery from the claimant in full or even part is not guaranteed depending on his financial situation having lost his claim.
  • The defendants to pay 15% of the claimant’s costs from the date the FD allegation was formally raised to trial [around 6 months], on the standard basis.

In doing so, the court recognised that some defendant costs would have been incurred regardless, but the claimant’s extra burden of defending the FD allegation which failed justified the sanction against the defendant.

Defendant’s perspective
Despite winning the substantive claim, the defendants incurred a cost penalty due to a failed FD allegation. It reinforces the point: if you raise FD, you must have a robust evidential basis and be prepared to abandon it if it falters. Otherwise, you risk weakening your costs position.

Sign of deceitful intentions in the office setting.

Case 2: Zakia Din v Aviva Insurance Ltd (26 Sept 2025)

Brief facts
The claimant, a front-seat passenger in a vehicle accident, alleged neck/right upper limb injury, chronic pain, PTSD and consequential losses. The defendant insurer admitted breach but denied causation/quantum and pleaded FD as to both the accident mechanism and alleged consequences. The court found the accident was a minor low impact event contrary to the claimant’s dramatic narrative. Surveillance showed the claimant actively shopping without the shoulder immobiliser she had claimed to need. Psychological and pain-medicine expert testimony adduced by the claimant was rejected. The judge found the claimant had invented or grossly exaggerated both mechanism and effects, and that the dishonesty went to the heart of the claim.

Evidence of exaggeration / dishonesty
Key evidential pointers:

  • Engineering/accident evidence: photographs and expert evidence contradicted the claimant’s version of a violent impact.
  • Surveillance: the claimant wore a shoulder immobiliser in examination, then left it in a taxi and carried on shopping unaided — undermining their claimed disability.
  • Expert evidence: the defence psychiatrist discredited the claimant’s PTSD claim; the claimant’s psychologist’s evidence was disregarded due to telephone-only assessment, patchy record annotation and role-blurring as advocate.

The judge applied the test under Ivey  v  Genting  Casinos (2017) UKSC 67 (dishonesty standard) and found deliberate concoction/exaggeration which “hijacked the entire trial process.”

Judgment & costs orders
FD was found. Consequently:

  • QOCS (qualified one-way costs shifting) was disapplied pursuant to CPR 44.16 because FD succeeded.
  • The claimant was ordered to pay the defendant’s costs on an indemnity basis, fully enforceable.
  • An interim payment on account of costs of £140,000 was ordered to be paid by the claimant to the defendant.
  • The claimant was also ordered to repay an interim payment of damages plus interest – which presumably had already been spent in full or at least in part.

Defendant’s perspective
This case shows the full upside from a defence viewpoint: a successful FD allegation converts what might otherwise be a cost-risk into a cost-reward, with strong cost recovery and claimant representatives will note a significant deterrent effect. The total costs payable by the claimant will presumably total much more than £140,000 and together with repayment of the interim on damages will have a catastrophic financial impact on the family.

Comparative cost-analysis & key lessons

The contrast between the two cases is instructive for defendants:

  • In Hakmi, the defence won the substantive claim but lost on FD; cost result: potential cost recovery, but liability to pay 15% of claimant’s costs from the FD-issue date and restrictions on enforcement.
  • In Din the defence succeeded on FD; cost result: QOCS disapplied, full cost recovery, indemnity basis, interim costs payment – strong financial win.

Thus, the strategic decision to raise FD must be made with eyes wide open: the risk of failing is real, and the cost sanctions meaningful. A well-founded FD allegation can however shift the balance by reversing the cost regime; one which the court deems to be poorly supported can reduce your cost recovery even if you succeed in defeating the claim on liability.

Considerations for defendant advisers: Raising fundamental dishonesty

From a defendant’s standpoint (hospitals/Trusts, insurers, legal teams) the decision to plead FD requires careful planning:

  1. Evidential strength – Just as in Din, strong documentary, surveillance and expert evidence is crucial. In Hakmi, the court felt the evidence lacked such a clear foundation.
  2. Clarity in pleading and timing – The FD allegation should be clearly pleaded early and you must keep under review whether the evidence remains sufficiently strong to pursue. Hakmi shows the consequences where the allegation is maintained despite apparently weakening evidence.
  3. Cost-risk analysis – You must weigh the cost-reward. If you lose the FD component you may face cost sanctions (e.g., percentage of claimant’s costs).
  4. Interplay with QOCS/CPR 44.16 – Where FD is found, QOCS is disapplied and full costs shifting may apply; where it is not, you remain under the conventional regime and may face an adverse order.
  5. Evidence-gathering – Surveillance, incident documentation, expert testing are vital. In claims involving diagnostic testing, evidence of deliberate under-performance may be difficult to establish.
  6. Professional and reputational context – Courts may take into account the claimant’s standing when faced with an allegation of FD. In Hakmi, the claimant’s status as consultant surgeon influenced the court’s cost discretion.
  7. Negotiation and settlement strategy – Raising FD may complicate settlement: claimants may refuse early offers, expecting a full hearing to avoid FD findings.
  8. Isolation of the FD issue – Consider whether you can isolate the FD allegation (e.g., by issues-based cost order) or reserve the right to abandon it if new evidence undermines it.

Conclusion

From the defence perspective, FD allegations are high stake. The contrasting outcomes in Hakmi and Din show that FD can be either a cost-advantage or a cost-trap. The take aways are clear: only raise FD with a robust evidential foundation and a clear strategy. Proper preparation, early investigation and dynamic case-management are essential. Successful FD outcomes can make spectacular headlines involving contempt of court and imprisonment, but if the court goes against you there can be a costs sting in the tail.