UK: Scotland: Fundamental Dishonesty Considered

Last Updated: 19 April 2018
Article by Andrew Constable

Most Read Contributor in UK, November 2018

Grant Grubb v John Finlay [2018] CSIH 29

The Court of Session has refused an appeal which sought to dismiss a substantially exaggerated claim on the basis that it was fundamentally dishonest.


The Pursuer sued the Defender for £500,000 following an accident which occurred in a petrol filling station in Dundee in 2011. The Defender reversed his Peugeot into the front of the Pursuer's stationary car. The Defender admitted liability, and therefore, the only issue was that of quantum of damages.

The Pursuer averred that he had sustained a whiplash injury to his cervical spine, resulting in an impingement of the C7/C8 nerve roots.

We were instructed to act on behalf of the Defender by his insurance company. We advanced arguments that the Pursuer had been fundamentally dishonest, as he had made several contentions which were not truthful. In the absence of formal Scottish legislation on this issue, and with reference to English procedure and legislation on fundamental dishonesty, we sought that the action should have been dismissed as an abuse of process.

The Lord Ordinary accepted that there was discretion to dismiss an action if a "fair trial is impossible, or if there is a fundamental dishonesty on the part of the pursuer, or if there is an abuse of process," but declined to use it. The Lord Ordinary awarded the Pursuer around £7,500 in damages.

On our further motion following an additional hearing, expenses in favour of the Defender were awarded on a 2/3 basis, commenting on the Pursuer's conduct.

We appealed the decision to award damages, arguing that the whole case should have been dismissed, based on the principle of fundamental dishonesty. The Pursuer cross-appealed the decision to award expenses in favour of the Defender.

The Court of Session

The Court of Session was asked to rule on two issues:

  1. The power of the court to dismiss an action, summarily at the stage of a proof, when the Pursuer is found to have acted dishonestly;
  2. Whether a Pursuer, who has been awarded damages, should, in the absence of a tender, be the subject of a contra award of expenses because of his dishonest conduct

As to the first issue, it was found that whilst the Court had an inherent power to summarily dismiss an action, it was in very rare circumstances where it would do so whilst one party is producing evidence in supporting of the claim.

The Pursuer's response to the appeal admitted that "any fraud was purely technical," and that the Court could not dismiss the claim as fundamentally dishonest because he had suffered injury. The dispute arose over the exaggeration of such injury.

The Court agreed, holding that "the pursuer did not make a fundamentally dishonest claim. He made a good, if exaggerated, claim."

The exaggeration was considered "in the context of the Lord Ordinary's finding that the pursuer had continuing symptoms, albeit that they cannot, in the Lord Ordinary's view and preferring one body of medical evidence over another, be causally linked to the accident."

The appeal was dismissed.

In respect of the second issue, the Court held there was no basis to impugn the Lord Ordinary's decision to make the Pursuer the subject of a contra award of expenses. The Court held that the Lord Ordinary was entitled to consider the conduct of the parties and that the Pursuer's "lack of candour" had resulted in an extended proof.

The cross-appeal was dismissed.

What can we learn?

  • This decision exemplifies the problem defenders continue to face in Scotland with fraudulent claims. The Lord Ordinary confirmed that fundamental dishonesty on the part of the pursuer can result in the summary dismissal of a claim, yet the Court of Session did not define what actions constitute such fundamental dishonesty.
  • The Pursuer initially claimed approximately £500,000, reducing his claim down to £183,000, and was awarded around 4% of the reduced sum, yet was not considered to be fundamentally dishonest.
  • The decision not to dismiss the claim stands firmly at odds with the decision to award expenses in favour of the defender, particularly in light of the pursuer's "lack of candour".
  • This case had striking similarities with the English claim of Summers v Fairclough Homes. This claim became the direct precursor to the primary legislation introducing section 57 of the Criminal and Justice Courts Act (CJCA) in England and Wales. We are of the view that the facts of this claim mirror the exact circumstances in which we would expect a Court in England and Wales would apply Section 57.
  • There is some encouragement for defenders, as Sheriff Principal Taylor recognised the need to protect defenders within the Civil Litigation Funding Bill and the requirement in Section 8 will remove QOCS protection when a fraudulent representation has been made. However, the difference between a finding of fundamental dishonesty under the qualified one-way costs shifting (QOCS) regime and under section 57 would have been particularly important here.
  • Broadly speaking, the removal of QOCs protection can be summarised as the pursuer unsuccessfully bringing a fraudulent claim – usually entirely fraudulent – and losing QOCS protection as a consequence. The Court of Session was of the view that the Pursuer had suffered a genuine injury in this instance. Section 57 fundamental dishonesty is different; it addresses those pursuers who dishonestly exaggerate a genuine claim, causing that claim, including genuine heads of loss, to be dismissed. This mirrors the circumstances of this claim.
  • There have now been a number of very robust decisions in England and Wales using this legislation, which have been reported on by our colleagues.
  • Similar provisions to those in Section 57 did not make their way into the Civil Litigation Bill. In the absence of such legislation, it is clear that an authoritative judgment is required on what constitutes fundamental dishonesty, notwithstanding our view that the Scottish Government to consider the implementation of legislation similar to that of Section 57.
  • It is increasingly untenable to allow the dismissal of actions for breaches of minor procedural rules, yet permit actions to proceed to conclusion of proof when it becomes apparent there is a clear intent of defrauding a defender, and abusing the Court process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions