Tainted Evidence and the Dishonest Litigant

One of the consequences of the UK adversarial legal system is that parties are expected and encouraged to pursue their case as forcefully as is possible. There can be occasions however when either a claimant or defendant will overstep the boundary and resort to dishonest means. This could involve 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 by a party.

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. Such an application will not however automatically be granted. It will depend upon whether, if the tainted evidence is excluded, there will be sufficient other evidence to maintain a claim. 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 entitled—indeed, I would hold bound—to 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.

An example of this was the case of Shah v Ul Haq. 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 court’s 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. Proceedings for contempt of court can often be brought where a party makes a false statement under a statement of truth. A prison sentence could well result if proven and at the very least a fine. The criminal standard of proof requires that the attempt to interfere with the course of justice is proven beyond reasonable doubt. 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? Applying to have the case struck out is a possibility but is not always the best answer. 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.

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