The Court of Appeal has ruled that despite there being no reference to ‘fundamental dishonesty’ in a defence or during cross examination at trial, this is no bar to the Court still making a finding of fundamental dishonesty.
In the case of Howlett & anor v Davies & anor,  EWCA Civ 1696, the Claimant sought to pursue a claim for personal injury following a road traffic accident. The Defendant put the Claimant to strict proof in respect of the accident having ever taken place and suggested that, even if it did occur, it was of such low velocity that they could not have suffered an injury or loss as a consequence. The Defence made no reference to ‘fundamental dishonesty’ and defence Counsel, at trial, did not cross examine the Claimants specifically on the point but rather raised various inconsistencies in the evidence and addressed the issue of as part of his closing submissions.
The Court of Appeal found that whilst there was no express reference to a Claimant being ‘dishonest’ or ‘lying’, ‘what ultimately matters is that the witness has had fair notice of a challenge to his or her honesty and an opportunity to deal with it’ and ‘the fact that a party has not alleged fraud in his pleading may not preclude him from suggesting to a witness in cross examination that he is lying’. In the instant case, the various inconsistencies in the Claimants’ evidence were put to them in some form or another, so Newey LJ dismissed the appeal.