Section 57 of The Criminal Justice and Courts Act 2015 made it easier for Defendants to challenge dishonest claims.  Following a finding of dishonesty, a successful Defendant can apply for committal for contempt. The landmark case of Calderdale & Huddersfield NHS Foundation Trust v Atwal (2018), where the Respondent received a 3 month immediate custodial sentence for attempting to defraud the NHS out of c. £800,000, set a significant precedent.  Defendants appear more ready to make an application and courts to make findings of dishonesty and hand down sentences of imprisonment. In George Eliot Hospitals NHS Trust v Elder (2019) the Respondent received an immediate 5 month custodial sentence for an attempt to defraud the NHS of over £2million having brought a claim for £2.3 million but only being awarded £300,000.

Pre-action dishonesty is not covered by s.57, but since the decision in the holiday sickness claim Jet2 Holidays Ltd v Hughes & another (2019), Defendants have a remedy. The Court of Appeal determined that the High Court did have jurisdiction to commit for contempt as Pre Action Protocols are an integral and important part of the litigation process and the Respondents’ false statements had interfered with it.  The case brings the position of Defendants facing unscrupulous Claimants in pre-action matters into line with those where proceedings are issued and increases in the number of challenges to dishonest claims and committals for contempt are likely to follow.

Medical Malpractice Forward View 2020

This article is part of Capsticks’ Medical Malpractice Forward View 2020. Read the other articles featured in this publication below:

• Spotlight on seven key decisions in 2020 affecting healthcare providers and insurers
• Paterson Inquiry report due in early 2020
• The new Clinical Trials Regulation – implementation date likely to be delayed
• Further developments in telemedicine, AI and robotics will bring opportunities, challenges and risk for businesses in the MedTech sector
• Where next on the appropriate approach to future accommodation claims?
• Fixed Recoverable Costs should contribute to controlling the rising costs of clinical negligence claims, but there is further work to be done
• Mediation and other forms of dispute resolution are set to continue rising in medical malpractice claims.

Get in touch

Capsticks advise and support medical malpractice insurers and healthcare providers on all aspect of medical law including claims, inquests and regulatory proceedings.

To discuss how any of these issues may affect your organisation, please get in touch with Majid Hassan, Anna Walsh, or Philip Hatherall.