When Defendants Overreach: Costs Consequences in Failed Dishonesty Allegations

By Bipin Regmi, Senior Underwriter, Temple Legal Protection

Introduction  Temple Legal Protection, a sponsor of Newcastle Upon Tyne Law Society, presents an article by Bipin Regmi, Senior Underwriter, reflecting on the cost consequences of making dishonesty or fraud allegations that are not upheld by the court.

Although the underlying dispute involved a clinical negligence claim, the case raises broader procedural and strategic considerations relevant to many types of civil litigation – especially where reputational issues and fundamental dishonesty are alleged as part of the defence.

Hakmi v East & North Hertfordshire NHS Trust & Anor [2025] EWHC 2597 (KB)

This claim arose from the decision of the second defendant’s stroke consultant, Dr Metcalf at the Norwich & Norfolk Hospital, not to offer Mr Hakmi thrombolysis to treat a stroke on 16 November 2016, which it is alleged has caused him serious disability.

The defendants advanced an allegation of fundamental dishonesty against the claimant.

The High Court ultimately concluded that there was no negligence and that thrombolysis would not ultimately have altered the Claimant’s outcome.

David Pittaway KC (sitting as a Deputy High Court Judge) concluded that the allegation of fundamental dishonesty failed and ordered the Defendant to pay a proportion of the Claimant’s costs due to a failed fundamental dishonesty allegation where the claim had otherwise failed.

At paragraph 133 of the judgement, David Pittaway KC stated:

“The conclusion that I have reached is that, notwithstanding that the defendants will not be able to enforce an order for costs on the claim, I should make an order that reflects that the defendants failed to establish fundamental dishonesty on the part of Mr Hakmi. I do not accept that to make such an order, where a claimant fails, undermines the costs regime. If anything it is the converse, not to make such an order would give a defendant a free tilt at raising the issue of fundamental dishonesty. The evidence in this case was properly explored at the trial and found increasingly wanting. It would have been open to Mr de Bono to have abandoned the issue after the close of evidence, or indeed earlier, but he did not do so.”

At paragraph 134 of the judgement, David Pittaway KC further stated:

“It seems to me that I should make an order for costs that reflects that the defendants failed to establish fundamental dishonesty. As Mr Kellar has pointed out there was unfavourable national press coverage on the first day of trial and the consequences for Mr Hakmi, as I have said above, if the allegation had been found proved, would have been disastrous for his reputation and career. In my view, the order I make should reflect a percentage of the costs from the time that the issue was raised in the defendants’ counter-schedule, which is dated 18 March 2025. I consider that Mr Kellar’s submission that it should be 25% is too high, and accept in part Mr de Bono’s submission that some of the costs would have been incurred in any event.”

Although the claim was unsuccessful as the judge found that the treatment would not have altered the outcome, the judge went on to order that the successful defendants pay 15% of Hakmi’s costs from the time that the issue of fundamental dishonesty was raised.

This ruling serves as an example of a costs penalty imposed on defendants who advance unsubstantiated allegations of fundamental dishonesty.

Fundamental dishonesty is a tactic sometimes employed by defendants to exert undue pressure on claimants, often with limited consequences if the allegation is unsuccessful. Many claimant solicitors have advocated for changes to the rules to ensure that claimants and defendants are treated equitably. This judgment will be welcomed by claimants seeking fairness in the process.

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