Tuesday, 5 June 2018

Exaggeration and Incarceration

A recent High Court case provides a salutary lesson that making deliberately exaggerated claims for damages for clinical negligence may have serious consequences, including imprisonment.

Mr Atwal suffered injury as a result of clinical negligence. He had been assaulted with a baseball bat but injuries to his fingers and lip were negligently managed and the NHS Trust responsible admitted liability and offered him £30,000 under CPR PT 36. He did not accept but commenced proceedings and ultimately claimed over £830,000 including substantial claims for loss of earnings and care.

The Claimant had worked as a DJ and as a courier. He claimed that his lip deformation affected his speech and made him self-conscious such that he could not perform in front of people. His hand injuries prevented him from lifting heavy items and working as a courier and adversely affected his dexterity when working as a DJ. He was, he claimed to experts and in court documents, out of work and in need of substantial care and assistance.

The Defendant Trust became suspicious of the claims and carried out video surveillance which showed the Claimant working for long periods as a courier lifting items in and out of vehicles. The Trust also made a search of social media posts by and of the Claimant showing him working as a DJ, even releasing a single and video (see above).

The evidence was disclosed to the Claimant and ultimately an agreement was reached for him to accept the much earlier offer of £30,000.

Contempt of Court proceedings were brought against Mr Atwal arising out of his claims that he had suffered injuries preventing him from working and resulting in him requiring substantial care and assistance. The case came before Mr Justice Spencer: Calderdale and Huddersfield NHS Foundation Trust v Atwal [2018] EWHC 961 (QB)

The contempt allegations fell into two categories - making false statements, mostly to medical experts, that were false, and making false statements in documents verified by statements of truth.

The Judge set out the legal framework:

31. In this application for committal the Trust therefore alleges two forms of contempt, each of which is technically distinct in law, although in this case they overlap. First they allege interference, or attempted interference, with the due administration of justice by the defendant's making false statements about his continuing disability to doctors and other experts who examined and interviewed him. That form of contempt requires, in this case, the Trust to prove that:
(i) the defendant deliberately set out to deceive the doctor or expert in question by falsely representing the extent of his continuing symptoms, either in the physical manner of his presentation or by lies told by the doctor or expert, or both;
(ii) the defendant must have intended thereby to interfere with the administration of justice;
(iii) the conduct complained of must have had a tendency to interfere with the administration of justice.
For examples of contempts of this nature, see Airbus Operations Ltd v Roberts [2012] EWHC 3631 (Admin), and Homes for Haringey v Fari [2013] EWHC 3477 (QB).

32. The second form of contempt alleged in this case derives from CPR 32.14(1) which provides:
"(1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth."
CPR part 22 provides that among the documents which must be verified by a statement of truth are a schedule of expenses and losses in a personal injury claim, and a witness statement. The contempts alleged in this case include examples of false statements in both such documents.

33. In relation to this form of contempt it must be proved that:
(i) the statement in question was false;
(ii) the statement has, or if persisted in would be likely to have, interfered with the course of justice in some material respect;
(iii) at the time it was made the maker of the statement
(a) had no honest belief in the truth of the statement; and
(b) knew of its likelihood to interfere with the course of justice.
These principles are well established on the authorities, and were confirmed (for example) in AXA Insurance UK plc v Rossiter [2013] EWHC 3805 (QB).

34. The standard of proof in respect of each of the elements of contempt is, of course, proof beyond reasonable doubt: the criminal standard of proof. The burden of proof is on the party who bring the proceedings for contempt, in this case the Trust.

35.It is important in a case such as this to concentrate on the nub of what is complained of at its most serious, rather than to consider and adjudicate on every detail of an oral or written statement which is alleged to have been false. The real thrust of this application for committal is that the defendant quite deliberately set out to deceive the doctors and other experts about the extent of his continuing disability, and that he verified by a statement of truth assertions of fact in his witness statement, and in his schedule of loss and damage, consistent with the things he had told the doctors and other experts knowing those statements to be false. I do not propose to make a finding in respect of each and every one of the 33 allegations of contempt but, even if it is not found to be a specific contempt, the fact that the defendant made a particular statement to more than one doctor or other expert may well provide evidence to support the inference that the central false statement was made quite deliberately knowing it to be false and knowing that it was likely to affect the value of the claim.

The Court found 14 allegations of contempt proved, and did so in the Defendant's absence.

On 1 June 2018 the Defendant attended Court, represented by Counsel, and chose not to challenge the findings of contempt. He was sentenced to 3 months imprisonment on each charge concurrently.

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