Following the recent case of Thomas v Owen (21st March 2023, Cardiff County Court), the link between social media and fundamental dishonesty has been brought to light once again. In this case, a claim for damages following a road traffic accident was dismissed as fundamentally dishonest after the Claimant’s social media posts revealed that she had enjoyed a strenuous walk despite reporting severely restricted mobility. The case highlights the detrimental impact that a Claimant’s social media posts can have on their personal injury claim and raises the question as to what Claimants can do to avoid a similar outcome.
In brief, fundamental dishonesty can be raised by a Defendant in litigation where it is suspected that the Claimant has exaggerated or lied about their claim.
In addition to the claim being dismissed, fundamental dishonesty can be expensive. According to the Civil Procedure Rules, orders for costs can be made against the Claimant and enforced to the full extent where the claim is found to be fundamentally dishonest. This means that qualified one-way costs shifting, which generally prevents a losing Claimant from bearing the Defendant’s costs, would not apply.
Finally, fundamental dishonesty can even attract criminal sanctions. Proceedings for contempt of court may be brought against a Claimant who exaggerates or lies about their claim.
There are several ways in which a Claimant’s social media can be used by the Defendants as evidence that they are exaggerating or lying about their claim. A significant example of this is Susan Sanderson & Others v Sonae Industria (UK) Ltd [2015] EWCA 2264 (QB). This was just one of thousands of claims brought against Sonae Industria following a catastrophic fire in 2011. In this particular case, the Claimant had asked someone on Twitter whether they had “jumped on the Sonae claim bandwagon”. He used the hashtag #showmethemoney and boasted that he would use the money from the claim to pay for a holiday. As a result, his claim was dismissed as fundamentally dishonest.
Another example is Rothoe v Bedford Hospitals NHS Trust [2017] EWCH 863 (QB), where the Claimant posted a picture of herself on Facebook at a restaurant despite earlier stating that she was unable to leave the house following her accident.
Since these contradictory social media posts are evidence of fundamental dishonesty, there is a duty placed on Claimant solicitors to preserve and disclose them during the course of litigation. Therefore, it is not a case of simply deleting them. Steps must be taken by Claimants to monitor their social media at an early stage.
These posts can be used as evidence in litigation. As a result, the Defendant may require them to be disclosed. Destroying this evidence can be harmful to a claim and even attract criminal sanctions.
It is not uncommon for Defendants to pose as someone else in order to gain access to your profile. However, be careful! If they have already seen your posts, subsequently making your profile private could suggest you are being dishonest.
It is unlikely that these posts will match up completely with any witness statements or medical evidence disclosed. Therefore, they could be used to support an allegation of fundamental dishonesty.
This is particularly important when it comes to witness statements. Claimants will often use broad terms like “always” when describing how often they are troubled by their symptoms. This could cause problems if their social media showed them enjoying a day out, for example. Instead, Claimants should consider how their symptoms affect them on good days as well as bad. They should try to be as honest as possible and avoid making generalisations.
Tilly Bailey & Irvine has a highly experienced personal injury team that deals with all types of claims such as industrial disease, accidents at work, road traffic accidents, and clinical negligence. We provide advice that is tailored to you, and you can be confident that no stone will be left unturned.
To get in touch with our personal injury team regarding a potential claim, please dial 01429 264101 and we will be happy to help.
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