Section 57 of the Criminal Justice and Courts Act 2015 – Fundamental dishonesty

It is highly likely that Section 57 of the Criminal Justice and Courts Act 2015 will become more prominent in the future. This is a controversial element of law which revolves round “fundamental dishonesty” when pursuing legal action, in this instance a personal injury claim. There are a number of elements to consider regarding Section 57 and how it may be “correctly” used in a court of law.

What is Section 57?

Section 57 revolves around “fundamental dishonesty” of a claimant, when pursuing any type of legal action. Where dishonesty can be proven the courts have the option to strike-out any personal injury claim. The problem is defending dishonesty in relation to the claim and dishonesty in relation to a person’s previous character. These can be very challenging.

Is dishonesty a reason to throw out a personal injury claim?

At first glance, the simple answer is yes. If the claimant has acted dishonestly in relation to their personal injury claim then it seems fair that the court has the option to reject the legal action. We then move on to what is fast becoming a grey area. Does the court need to take into account convictions for dishonesty in years gone by when considering a claimant’s action?

Attacking a claimant’s character

Where a defendant’s lawyers believe they can bring into question the claimant’s character, or to a certain extent “muddy the water”, it is likely they will go for this mode of “attack”. We have seen instances where claimants have been found guilty of perverting the course of justice in the past. Even though their actions may have nothing to do with their ongoing claim, and there is no evidence of further dishonesty, it can impact their credibility and influence the decision of the court.

Should past dishonesty be taken into account?

In many ways this argument regarding Section 57 is a perfect example of why you need as much evidence in a personal injury claim as possible, including evidence from independent third parties. Even if the defendant can “prove” the claimant to be dishonest, if there is sufficient evidence from third parties this could negate the impact. In personal injury claims where there is a lack of witnesses, the strategy of attacking historic dishonesty could pay significant dividends – especially if the case rests mainly on the claimant’s testimony.

Why is Section 57 so important to a defendant?

Under normal circumstances, if a defendant was to successfully defend a personal injury claim it is unlikely they would be able to recover their costs. This is simply a situation where both parties believe they were in the right and the defendant secured a court ruling in their favour. The situation becomes a little more complicated when we involve a Section 57 action.

This legislation allows the court to dismiss personal injury claims where the claimant has been proven to be fundamentally dishonest. In addition, if the claim is thrown-out using a Section 57 application, the defendant may be able to recover costs from the claimant. Many experts believe that Section 57 applications are being used, not just to prove dishonesty, but also as a means of recovering expenses. The final judgement regarding costs will be down to the courts, but using this legislation adds that option to the mix.

Combating attempts to question your character

It is unfortunate but a Section 57 notice gives the impression that you can be “tried” for the same crime on more than one occasion. In reality, this is not the case, but by using previous misdemeanours to cast a dark light on your character, it may feel this way. So, how could you protect yourself from what is effectively a character assassination?

Supply evidence to show you have changed

When a defendant uses a Section 57 notice to call your character into question, this is not necessarily the end of the world. You may be able to negate the impact if you can prove:-

• Previous dishonesty has no relation whatsoever to your personal injury claim
• You are a reformed character with witnesses to prove it
• This is a malicious attempt by the defendant to question your character

When faced with this kind of character assassination, many claimants will take a backward step and reconsider their claim. This is perfectly understandable, especially where they may have issues in the past they would prefer not to be aired in public. However, on the flipside, if the defendant has been negligent, leading to your accident and injuries, why should they escape justice?

Third-party evidence is vital

In previous articles we have highlighted the need to collect as much evidence as possible to support your personal injury claim. Photographs, your timeline of events and additional details you can provide would normally strengthen your case. However, if the defendant uses a Section 57 application, it may be a battle to allow your evidence to see the light of day.

This is where third-party evidence can be worth its weight in gold. As well as your personal evidence, and details of the incident, you should look to provide:-

• Third party witness statements
• Evidence of similar negligence in the past
• Medical reports
• CCTV evidence where possible

In essence, you need to shift the weight of evidence from you to totally unconnected third parties. This may backfire if the defendant is able to prove a link/relationship between you and any third parties offering evidence. Unfortunately, there is every chance that the third parties are telling the truth but the defendant’s character assassination has injected a degree of doubt into the court room.

Highlight defendant’s heavy-handed approach

The best way to demonstrate this counterargument is to look at a case from 1st January 2015 in which a claimant slipped and fell on moss covered ground. The incident occurred while taking rubbish to the communal bins at their home, an area which was part of a private management agreement. Residents of the complex paid a regular service charge to cover repairs and general maintenance of “grounds and communal areas”.

The claimant suffered serious ligament damage, affecting their daily life and regular fitness regime. Add to this the fact that they also required care and assistance from their partner; it seemed to be an open and shut case. However, the defendant used Section 57 of the Criminal Justice and Court Act 2015 to call the claimant’s character into question (delaying the case by 5 years!).

In this instance, the claimant had a historic criminal conviction for perverting the course of justice. While this conviction was in no way connected to the personal injury claim, it was used as a means of showing they were not of credible character. However, the defendant’s lawyers made a mistake in threatening committal proceedings if the claimant was found to be dishonest.

The claimant was able to prove to the judge that the defendant’s legal team had been “heavy-handed” and their action was not reasonable or proportionate. As a consequence, the defendant was ordered to pay the costs of the claimant, and the personal injury compensation claim was able to proceed. This perfectly illustrates the need to remain focused, even when you’re character is being called into question.

Taking professional advice

As we touched on above, many observers believe that Section 57 notices will become more common in the months and years ahead. These not only open up the opportunity to reclaim expenses in the event of a failed court case, but they also add further pressure to the claimant. This is yet another reason why it is imperative you take advice from personal injury claims solicitors. They will be able to advise you on the strength of your case and any mitigating circumstances which may undermine your claim.

When discussing your case with a personal injury claims expert, it is important that you are:-

• Upfront and honest about EVERYTHING
• Mention any convictions which may impact your case
• Provide as much evidence as possible

The last thing that your legal team need is to hear evidence of past misdemeanours, which may impact your credibility as a witness. The impact can be even more acute where there are limited third-party witnesses or photographic evidence. Be honest and upfront!

Is there any need to be so heavy-handed?

As a claimant or defendant, there are many areas of UK law which are difficult to understand without a law degree. On the surface, it seems unfair that a defendant would look to besmirch your character simply as a means of avoiding “justice”. In reality, you will need to prove beyond reasonable doubt that the defendant was negligible, causing your injuries, and that you are of sound character.

There is a general misconception that in this situation the court would simply dismiss any claim if you have previous convictions. This is not always the case and your personal injury claims advisor will be there to guide you. Unfortunately, over the years we have seen many fraudulent claims come before the courts, which have been backed by co-conspirators. These actions have made the courts very nervous.

Conclusion

We can only imagine the number of bone fide personal injury claims which are not pursued. It is unfortunate, but there will be situations where legitimate claims by those with a criminal record will be cast into doubt. If there is a chance that your character could be called into question, this may prevent a personal injury claims solicitor from offering a no-win no-fee arrangement. This is normally offered where the solicitor believes you to have a good chance of success – after taking all elements of your personal injury claim into account.

It will be interesting to see whether there is an increase in Section 57 applications to the courts, as a means of calling into question the character of a claimant. These are perfectly legitimate lines of attack but the courts do not appreciate using this method to intimidate claimants.