Can Defendants Be Ordered To Pay Costs When Fundamental Dishonesty Allegations Fail?

A losing claimant was awarded 15% of costs from the date fundamental dishonesty was alleged, with the court ruling that failure to impose such orders would give defendants a “free tilt” at raising dishonesty allegations.

HAKMI V EAST & NORTH HERTFORDSHIRE NHS TRUST & NORFOLK & NORWICH UNIVERSITY HOSPITALS NHS TRUST [2025] EWHC 2597 (KB)

In Hakmi v East & North Hertfordshire NHS Trust & Anor, the High Court addressed costs consequences where a defendant pursues an unsuccessful allegation of fundamental dishonesty against a claimant who has lost the underlying claim. The claimant, a consultant orthopaedic surgeon, brought a clinical negligence claim for failure to offer thrombolysis following a stroke in November 2016, with agreed quantum of £1,033,824. The claim was dismissed primarily on causation grounds, the court finding that thrombolysis would probably not have altered the claimant’s Modified Rankin Scale outcome of 2. The defendants pursued an allegation under section 57 of the Criminal Justice and Courts Act 2015 that the claimant deliberately underperformed in neuropsychological testing to advance his claim. David Pittaway KC, sitting as a Deputy High Court Judge, rejected the fundamental dishonesty allegation, finding the defendants failed to prove it to the civil standard. On costs, the court ordered the claimant to pay the defendants’ costs (not to be enforced without permission), but also ordered the defendants to pay 15% of the claimant’s costs from 18 March 2025, reflecting the burden imposed by the unsuccessful fundamental dishonesty allegation and rejecting the argument that such an order would give defendants a “free tilt” at raising dishonesty issues.

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. [...] 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. [...] I order that the defendants pay 15% of Mr Hakmi’s costs from 18 March 2025, subject to a detailed assessment on the standard basis in default of agreement. Otherwise I order that Mr Hakmi pay the defendants’ costs of the action not to be enforced without the leave of the court.

Citations

Cojanu v Essex Partnership University NHS Trust [2022] 4 WLR 33 To justify dismissal of a claim under section 57 of the Criminal Justice and Courts Act 2015, the defendant must prove fundamental dishonesty by the claimant on the balance of probabilities that substantially affects the presentation of the claim. Freeman v Pennine Acute Hospitals Trust [2021] EWHC 3378 (QB) The assessment of witness credibility in clinical negligence cases requires recognition that recollections of traumatic or significant personal events may evolve over time, influenced by repeated reflection and emotional impact. Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) Courts should approach the reliability of human memory with caution, particularly where events occurred long ago, favouring contemporaneous documents and objective evidence over oral accounts reconstructed after the fact. Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 The test for dishonesty is whether, by the ordinary standards of reasonable and honest people, the claimant’s conduct was dishonest, regardless of their own perception of its propriety.

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Where a defendant raises an allegation of fundamental dishonesty under section 57 of the Criminal Justice and Courts Act 2015 and fails to establish it, the court may make a costs order in the claimant’s favour in respect of the costs incurred in defending that specific allegation, even where the underlying claim is dismissed. [132, 134]
In determining the proportion of costs to be awarded to a claimant for successfully defending a fundamental dishonesty allegation, the court will consider the point at which the allegation was formally raised and the extent to which the associated costs would have been incurred in any event as part of the main defence. [134, 135]
A court may order that a costs liability of an unsuccessful claimant is not to be enforced without the court’s permission, reflecting the circumstances of the case and the impact of an unsuccessful allegation of fundamental dishonesty. [135]
The pursuit of a serious allegation such as fundamental dishonesty, which carries significant consequences for a claimant’s reputation and career, is a relevant factor for the court to consider when exercising its discretion on costs, particularly where the evidence for the allegation is found to be wanting. [126, 132, 134]

“I have carefully considered the correspondence between the parties before the trial […] It provides context for the period in the lead up to the trial, including Mr Hakmi’s solicitors putting the defendants on notice that, in the event that the issue of fundamental dishonesty failed, there would be an application for costs, and the defendants making two ‘drop hands’ offers shortly before trial. In any event, the trial went ahead and the defendants pursued the issue of fundamental dishonesty until the end.”

Key Findings In The Case

The judge found that although the claimant’s case failed on liability and causation, the defendants had not succeeded in proving fundamental dishonesty under section 57 of the Criminal Justice and Courts Act 2015; the court therefore had discretion to make a partial costs order in the claimant’s favour relating to the defence of that allegation [126, 130, 134–135].
The court found that the defendants had pursued the allegation of fundamental dishonesty from 18 March 2025 onwards, including throughout trial and in final submissions, and that the claimant had been put to significant effort and cost in defending it; this justified an award of costs beginning from that date [132–134].
The judge determined that the appropriate costs sanction against the defendants was payment of 15% of the claimant’s costs incurred from the date fundamental dishonesty was raised, rather than the 25% sought, as some evidence and costs would have arisen regardless [134–135].
The court ordered that, although the claim was dismissed, the claimant’s liability to pay the defendants’ costs was not to be enforced without the court’s permission, in recognition of the failed dishonesty allegation and its potential impact on the claimant’s reputation and professional standing [135].
The court accepted that the national press coverage and professional implications of the dishonesty allegation were significant factors to be considered when exercising discretion on costs, particularly given the lack of evidential basis ultimately found for the allegation [126, 132, 134].

“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. […] It seems to me that I should make an order for costs that reflects that the defendants failed to establish fundamental dishonesty.”

The High Court’s decision in Hakmi v East & North Hertfordshire NHS Trust [2025] EWHC 2597 (KB) establishes that defendants may be ordered to pay a percentage of a claimant’s costs arising from unsuccessful fundamental dishonesty allegations, even where the claimant has lost the underlying claim.

Background

The claim arose from clinical negligence allegations concerning the treatment of Mr Mohamed Atef Hakmi, a consultant orthopaedic surgeon, following a stroke on 16 November 2016. It was alleged that the second defendant’s stroke consultant at Norwich & Norfolk Hospital failed to offer thrombolysis, resulting in serious disability. Quantum was agreed at £1,033,824, subject to liability. [§1]

The trial, held in June 2025, focused on breach of duty and causation. The court dismissed the claim, finding that thrombolysis would probably not have altered the outcome even if offered. [§97] While the court identified certain process failures (including failure to check telemedicine equipment before the shift and failure to conduct hourly neurological checks post-admission [§65, §75]), the claim ultimately failed on causation: Mr Hakmi had made a very good, if imperfect, recovery, achieving a Modified Rankin Scale score of 2, which falls within the range of a good outcome whether or not thrombolysis had been administered. [§95-97]

During the proceedings, the defendants raised an allegation of fundamental dishonesty against Mr Hakmi under section 57 of the Criminal Justice and Courts Act 2015, contending that he had deliberately underperformed in neuropsychological and other assessments conducted by their experts (Dr Bach, Dr Hassan, and Dr Santullo) to advance his claim. [§98] This allegation was raised formally in the defendants’ counter-schedule dated 18 March 2025 and was maintained throughout the trial. [§134-135] The allegation was ultimately rejected by the court, which found that Mr Hakmi’s poor performance in testing could be explained by his psychological condition, fatigue from serious familial issues, and the organic effects of his stroke rather than deliberate malingering. [§126-129]

Costs Issues Before the Court

Following the dismissal of the claim, the court was required to determine the appropriate costs order. [§131] The primary issue was whether the defendants should bear a portion of the claimant’s costs due to their unsuccessful pursuit of the fundamental dishonesty allegation. The defendants had raised this issue in their counter-schedule dated 18 March 2025, and it was maintained throughout the trial despite the evidence becoming “increasingly wanting.” [§133]

The court also had to consider the general principle that costs follow the event, given the claim’s dismissal, and whether any order for costs payable by the claimant should be subject to enforcement restrictions.

The Parties’ Positions

The claimant submitted that the defendants should pay a percentage of his costs from the date the fundamental dishonesty allegation was formally raised (18 March 2025), arguing that the issue had been pursued without sufficient basis and had caused significant distress and reputational damage. [§134] The claimant’s solicitors had previously put the defendants on notice that costs would be sought if the allegation failed. [§132] The claimant proposed that 25% of his costs from 18 March 2025 would be appropriate, reflecting the resources devoted to defending the allegation. [§134]

The defendants contended that costs should follow the event, with the claimant paying their costs of the action. [§131] They argued that the fundamental dishonesty issue was properly investigated and pursued, and that some costs associated with it would have been incurred in any event as part of the defence. The defendants highlighted that they had made two “drop hands” offers shortly before trial, which were not accepted. [§132] They maintained that the allegation was raised and pursued in good faith, with counsel assuring the court that “careful consideration had been given to making and maintaining the allegation right through to submissions.” [§133]

The Court’s Decision

The court held that, while the claimant was liable for the defendants’ costs as the unsuccessful party, the defendants’ failure to establish fundamental dishonesty warranted a partial costs order in the claimant’s favour. [§133, §135]

The court found that the allegation had been pursued to the end of the trial despite the evidence being “properly explored at the trial and found increasingly wanting.” [§133] Critically, the court rejected the defendants’ argument that making such an order would “undermine the costs regime” or give defendants a “free tilt at raising the issue of fundamental dishonesty.” The court stated: “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.” [§133]

The court noted several factors supporting a costs order in the claimant’s favour:

- - Reputational impact | There was “unfavourable national press coverage on the first day of trial” [§134]
  - Serious consequences if proved | The allegation, if established, “would have been disastrous for his reputation and career” [§134]
  - Opportunity to abandon | “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” [§133]

The court rejected the claimant’s submission for 25% of costs, considering it too high, and instead ordered the defendants to pay 15% of the claimant’s costs from 18 March 2025, subject to detailed assessment on the standard basis if not agreed. [§134-135] This percentage reflected that some costs would have been incurred regardless, but acknowledged the additional burden imposed by the fundamental dishonesty allegation. The court also accepted Mr de Bono’s submission “that some of the costs would have been incurred in any event.” [§134]

The court also ordered that the claimant pay the defendants’ costs of the action, not to be enforced without the leave of the court. [§135]

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