The Court of Appeal has confirmed again that a judge, faced with a fraudulent claimant, cannot strike out the entirety of the claim but must award whatever sum is legitimately claimed and then, if appropriate, penalise the claimant in costs.  So held in Widlake v BAA.

The claimant had pursued a claim for damages after falling on a defective staircase. She greatly exaggerated the extent of her pain and disability and the defendants produced video footage taken by a private detective to show that she was in fact capable of working.  She also attempted to conceal from the doctors the extent of her pre-existing back problems. At trial she was awarded damages of a little over £5,500 and managed to beat the defendants' offer of £4500.  The trial judge however decided it was appropriate to order the claimant to pay all the costs of the action to penalise her for her dishonesty.  Held, by the Court of Appeal, the appropriate order in all the circumstances was that there be no order as to costs (ie, that the claimant must pay her own costs but not the defence costs).

Lord Justice Ward:  I sound a word of caution: lies are told in litigation every day up and down the country and quite rightly do not lead to a penalty being imposed in respect of them. There is a considerable difference between a concocted claim and an exaggerated claim and judges must be astute to measure how reprehensible the conduct is. ...Defendants are, therefore, used to having to cope with false or exaggerated claims. Defendants have a means of protecting themselves. Part 36 is that shield. The court may not now always attach the same significance to a defendant's failure to beat his payment into court as applied in the days before the CPR. Coming close can now sometimes have an impact on costs. ... The claimant's dishonesty must be penalised. The claimant's failure to negotiate a claim which was clearly capable of being settled must also be recognised. When I balance those factors, and attempt to do justice to both parties and to be fair to them, I conclude that the right order in this case is that there be no order for costs.