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Request for reserved application of fundamental dishonesty fails to cut the Mustard

In Mustard v Flower [2021] EWHC 846 (QB), Master Davison considered whether a defendant in a personal injury claim could amend a defence to include a contingent and provisional argument that, if the court found at trial that the claimant had knowingly exaggerated symptoms, the defendant could reserve its position to later apply for a ruling of fundamental dishonesty and seek dismissal of the claim, plus costs sanctions provided for at section 57 of the Criminal Justice and Courts Act 2015.

Master Davison dismissed the fundamental dishonesty amendment as it served no purpose, particularly as the defendant could make an application for fundamental dishonesty at trial without needing this specific amendment now. Master Davison found that, in any event, at this stage in the case a plea of fundamental dishonesty had no real prospects of success, particularly as the medical evidence did not support such an assertion.


In January 2014, the claimant and defendant were involved in a road traffic accident. Liability was not disputed.

The claimant, who had quite a historic medical history, asserted that following the accident she had been suffering from cognitive and other deficits brought on by a brain haemorrhage and brain injury.

The parties disagreed about the effect of the accident. The claimant alleged that it was “medium velocity impact”. Her expert concluded that serious brain injury had been sustained although the outward signs of that injury were not immediately apparent. The defendant countered that the impact was definitely minor to the extent that their expert concluded that the claimant had suffered no brain injury whatsoever.

In February 2021, the defendant applied to amend the defence. There were three amendments:

  • Clarification of the way in which the forces and impact in the accident had been described.
  • To set out a more comprehensive detailing of the claimant’s pre- and post-accident disposition including the assertion that the claimant’s problems post-accident were consciously or unconsciously exaggerated.
  • To make provision for an application pursuant to section 57 of the Criminal Justice and Courts Act 2015 if the court eventually found that the claimant had, indeed, been fundamentally dishonest.

The defendant’s application was heard at a CCMC on 29 March 2021.

The claimant objected to the proposed amendments and argued that the amendments were basically allegations of fraud. The claimant also submitted that to allow the amendments would be unfair because those same allegations had not been fully particularised and more crucially there was no evidence upon which to pin serious allegations of fraud. The court was particularly mindful of the potential of unfairness to the claimant with reference to rule 9 of the BSB Code of Conduct, requiring “…reasonably credible material establishing an arguable case of fraud before it can be pleaded…”.

The defendant sought to counter this objection by suggesting that actual dishonesty was not being asserted but the inclusion of this amendment would serve to give notice to the claimant about the change in the nature of the defendant’s case. The defendant further submitted that under cross-examination, the claimant would be tested with regard to exaggerating symptoms and, if so, it would then make a section 57 application. The defendant tried to reassure the court that it did not want to ambush the claimant at trial but simply put her on notice of what she could be expect to be asked under cross-examination.


Master Davison found that the proposed amendment regarding fundamental dishonesty was redundant. An application under section 57 could be issued without it having been set out in a statement of case. The Master also ruled that a section 57 application should not be viewed as a litigant’s “right” or indeed that such an application had to be reserved by a party in advance. The Master also found that a plea of fundamental dishonesty had, certainly at this stage, no real prospect of success and whether on a provisional or contingent basis, did not meet the test for allowing permission to amend.

The Master also raised concern about visiting prejudice on the claimant. After all, an allegation of fundamental dishonesty would have to be reported to the claimant’s legal expenses insurers. This could then lead to a very real scenario of those insurers revoking cover from the start of the claim. The Master summarised that any finding of fundamental dishonesty would undoubtedly have serious implications for the claimant because if the proposed amendment was allowed, she would be subject to worry and anxiety and for no good reason, because at the moment there was no real evidence of fundamental dishonesty.

The Master concluded that if a defendant has a case for pleading fundamental dishonesty and wishes to make a section 57 application then they should simply plead that case or, when appropriate during the course of a claim, apply (preferably at the earliest reasonable point in time). The judgment is important because the Master drew a distinction between speculative or contingent pleas of fundamental dishonesty and properly constituted pleas or applications of fundamental dishonesty.


Claimants can be reassured that an opponent cannot set out a case for fundamental dishonesty either on a speculative basis or as some kind of reserve backstop. In addition, if a defendant makes a section 57 application within proceedings, the claimant must be placed on notice. There is no scope for ambush at trial.

Defendants should carefully particularise all issues to be tested at trial, which could result in a judge making a finding of fundamental dishonesty (for example, highlighting points which show a claimant’s lack of credibility or exaggerating the claim). In doing so, a defendant will not be closed off from testing the claimant under cross-examination. Defendants should not fret about not pleading an assertion of fundamental dishonesty, because an application can still be made and, if notice has been given, the trial judge is not precluded from making a finding.

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