It is being reported that in the recent case of Menary v Darnton in which the published judgment is awaited, that Mr Justice Hughes has provided a definition for “fundamental dishonesty” which extends the application of this provision in displacing QOCS.
It has been suggested by Damian Ward of Keoghs that in the recent Court of Appeal case that, on consideration of the term “fundamentally dishonest” differs from Dishonest only to the extent that it distinguishes aspects of exaggeration from this provision. Therefore, where a Claimant or the claim they present are dishonest, there will be a disapplication of QOCS so long as it was not dishonest in being exaggeration.
Quite a significant jump from the position in Gosling v Screwfix and one I don’t agree with. I believe that a case is fundamentally dishonest where the core element of the claim was dishonest, not where maybe a small head of loss maybe causally thrown in but held to be dishonest. We await to read the judgment but it looks like a significant victory for Defendants and a shot across the bows for anyone who might want to present a case in anything other than a entirely legitimate manor.