Wye Valley NHS Trust v Sean Murphy

This is an application for the committal of the Defendant, Mr Sean Murphy, for contempt of court.

The application is made by Wye Valley NHS Trust [‘the Trust’]. On 21 July 2023, His Honour Judge Picton (sitting as a Judge of the High Court) gave permission for the application to proceed. He did so following a hearing held on that day, at which the Trust was represented by leading counsel and Sean Murphy appeared in person without legal representation. For the reasons he gave in [2] of his judgment, HHJ Picton was satisfied that Mr Murphy had had ample opportunity to seek and obtain legal representation. The Judge decided that he should proceed to hear the application for permission on that day.

The Judge concluded that the evidence before him demonstrated a strong prima facie case of contempt on each of the allegations advanced by the Trust against Sean Murphy. The Judge further found it to be in the public interest and in accordance with the Overriding Objective that the application for contempt should proceed. He concluded that the Trust should be permitted to begin committal proceedings.

In short summary, the Trust alleges that Sean Murphy pursued a fraudulent claim for very substantial and hugely exaggerated damages for clinical negligence following an operation carried out to repair his left bicep which he had injured during a rugby match on 25 March 2017. He deliberately and knowingly made false statements to medical experts instructed to assist the court in the assessment of his claim. He verified particulars of his claim and a preliminary schedule of loss and damage, including a claim for loss of future earnings, knowing that the assertions as to the impact of his injury and surgery upon his ability to work, to use his left arm and to play rugby were false and lacking any honest belief as to the truth of those assertions. The true value of his claim for damages was less than one per cent of the sum that he claimed on the basis of his deliberate and knowing false statements.

On 16 October 2020, solicitors then acting for Mr Murphy issued a claim for damages greater than £200,000. Paragraphs 36 and 37 of the Particulars of Claim dated 29 January 2021 pleaded –

The Particulars of Claim were verified by a Statement of Truth signed by the solicitor then acting for Mr Murphy –

A Preliminary Schedule of Loss dated 29 January 2021 advanced a claim for damages in the total sum of £580,642.91. The largest elements of alleged losses were a claim for past loss of earnings in the sum of £109,204.92 and for future loss of earnings in the sum of £356,562.50. Account was given for an interim payment in the sum of £40,000 made on 18 July 2019, leaving a total balance of £540,642.91. The Preliminary Schedule of Loss was verified by a Statement of Truth signed by the solicitor then acting for Mr Murphy –

Following service of proceedings on 1 February 2021, on 24 February 2021 the Trust filed its Defence. The Trust sought the dismissal of Mr Murphy’s claim pursuant to section 57(1) of the Criminal Justice and Courts Act 2015 [‘the 2015 Act’], on the ground that Mr Murphy had been fundamentally dishonest in relation to his claim for damages.

The hearing of Mr Murphy’s negligence claim took place before Mr James Healy-Pratt, sitting as a Deputy High Court Judge, on 11 October 2022. Mr Murphy did not appear and was not legally represented. The Deputy Judge recorded that Mr Murphy had taken no steps in the proceedings since the service of the Trust’s defence alleging fundamental dishonesty. Mr Murphy’s solicitors had come off the record as acting for him on 14 May 2021. The Trust was represented by Ms Claire Toogood KC (who has also appeared on behalf of the Trust before me). The Deputy Judge gave judgment on 12 October 2022.

In [5] of his judgment, the Deputy Judge said –

In [7] he said –

In [9] he said –

At [14] of his judgment the Deputy Judge said that he had heard evidence from 3 witnesses called on behalf of the Trust - Mr David Limb, a consultant orthopaedic surgeon, Dr Peter Jenkins, a consultant psychiatrist and Mr Ben Oseman, a lay witness. He recorded the substance of the written and oral evidence given by each witness in detail.

At [34] the Deputy Judge said –

At [37]-[40] the Deputy Judge stated his findings on the Trust’s allegations of dishonesty against Mr Murphy –

The Deputy Judge then went to consider the Trust’s claims for repayment of the interim payment and for payment of its costs on an indemnity basis. At [54] he drew overall conclusions. He made an order accordingly on 12 October 2022.

On 27 April 2023, the Trust issued proceedings against Sean Murphy for committal for contempt. The details of claim were as follows –

The Statement of Grounds for Contempt at [7] said that the Trust relies on those three factual areas to prove beyond reasonable doubt that Sean Murphy interfered with the due administration of justice and made false statements in documents verified by a statement of truth.

Particulars of the alleged contempt are then set out –

Evidence in support of the Trust’s application was provided by the affidavit of Kristian James Hansen sworn on 4 April 2023 and 20 numbered exhibits produced by Mr Hansen with his affidavit.

On 15 June 2023, Sean Murphy filed an acknowledgment of service in which he stated –

Following the grant of permission on 21 June 2023 for the Trust to proceed with these committal proceedings, on 9 August 2023 Mr Murphy’s current solicitors gave notice that they had been instructed to act on his behalf. On 10 August 2023, the Trust’s solicitors supplied Mr Murphy’s solicitors with the claim form, grounds of alleged contempt, the affidavit of Mr Hansen and exhibits, His Honour Judge Picton’s permission order and notice of listing for directions.

On 11 December 2023, the Trust was served with a document signed by Sean Murphy and dated 8 December 2023, entitled “Basis of Plea”:

On 11 December 2023, His Honour Judge Richard Roberts (sitting as a Judge of the High Court) gave directions for the trial of the Trust’s application to commit. The Judge permitted the Trust to rely upon the Affidavit of Mr Hansen together with its exhibits as evidence in support of its application. The Trust was permitted to serve further affidavits upon which it wished to rely by 26 January 2024. Mr Murphy was permitted to serve any affidavits in reply to the Trust’s application to commit by 8 March 2024, which was later extended by consent to 3 May 2024.

Pursuant to those directions, on 24 January 2024 the Trust served the affirmation of Mr David Limb which was affirmed on 22 January 2024, together with 2 exhibits. Mr Murphy has not served any affidavit evidence in reply.

On 9 May 2024 the court fixed the hearing of the Trust’s application to commit to begin on 11 July 2024.

At the hearing on 11 July 2024, the Trust was represented by Ms Claire Toogood KC. Sean Murphy was represented by Mr Benjamin Bradley of counsel. I received skeleton arguments from both counsel and a supplementary skeleton argument from Ms Toogood KC. I am very grateful to counsel for their clear and helpful submissions.

At the hearing, the Trust relied on the evidence of Mr Kristian Hansen and of Mr David Limb. I heard evidence on oath from Mr Hansen. Mr Hansen verified his evidence given in his affidavit. He did not give further oral evidence-in-chief. He was cross-examined on his affidavit evidence by Mr Bradley. There was no re-examination. Although David Limb had been summoned to give evidence and attended on 11 July 2024 for that purpose, he was not called by Ms Toogood KC as Mr Bradley informed the court that he did not wish to ask Mr Limb any questions in cross-examination.

At the beginning of the hearing on 11 July 2024, I addressed Sean Murphy in the following terms –

Mr Murphy told me that he did not wish to give evidence.

Sean Murphy was born on 5 August 1985. He is 39 years old.

On 25 March 2017 Mr Murphy hyperextended his left arm while playing rugby. On 28 March 2017 he attended a fracture clinic. Following examination of his left arm, a suspected biceps tendon rupture was diagnosed. That was confirmed following an MRI scan. On 31 March 2017 Mr Murphy underwent surgery to repair the ruptured biceps tendon. On 6 April 2017 Mr Murphy presented at the A&E department and was seen in an emergency fracture clinic. He was experiencing significant pain and swelling in his left hand.

On 13 April 2017, Mr Murphy underwent further surgery to his left arm. Following a review on 16 May 2017, on 7 June 2017 nerve induction studies revealed radial nerve lesion. On 29 June Sean Murphy underwent a third surgical procedure to remove the endobutton and explore the nerve. On 18 July 2017 Mr Murphy was reviewed by the surgeon who recorded that he still experienced some clicking at rest and poor supination. Mr Murphy declined further surgery.

Mr Murphy did not attend Hereford County Hospital for further examination on 4 September 2017.

On 11 July 2017 Mr Murphy instructed solicitors on a conditional fee agreement.

On 11 December 2017 Mr Murphy did not attend a review at the County Hospital.

On 29 October 2018, at his solicitors’ request Mr Murphy was examined by Michael Kurer, a consultant orthopaedic surgeon. Mr Kurer produced his report on 24 March 2019.

In [18] to [27] of his report, Mr Kurer said –

Mr Kurer stated his opinion in [65] of his report. At [68]-[72] he said -

Mr Kurer produced colour photographs with his report. These clearly show two scars on Sean Murphy’s left arm, both of which were the result of his surgery to his damaged biceps in 2017.

On 19 December 2018 Mr Murphy’s solicitors sent a letter before claim on his behalf.

On 6 February 2019, at his solicitors’ request Mr Murphy was examined by Dr Jonathan Haynes, a consultant psychiatrist. The interview lasted for 60 minutes. Dr Haynes produced his report in March 2019. In his report, Dr Haynes said –

On 13 June 2019, the Trust’s solicitors wrote in response to the letter before claim.

On 4 July 2019, the Trust made an interim payment of damages of £40,000.

On 17 August 2020, at the request of the Trust’s solicitors, Mr Murphy was interviewed by Dr Peter Jenkins, a consultant psychiatrist. Dr Jenkins reported on 20 August 2020. In his report Dr Jenkins stated –

On 20 August 2020, at the request of the Trust’s solicitors, Mr Murphy was examined by Mr David Limb, a consultant orthopaedic surgeon at Leeds Teaching Hospitals NHS Trust. Mr Limb produced his report on 25 October 2021.

At head of his report, Mr Limb stated –

Mr Limb’s report included the following passages -

Mr Murphy’s claim form was issued on 16 October 2020. On 1 February 2021 Sean Murphy’s solicitors served his Particulars of Claim and Preliminary Schedule of Loss claiming £580,642.91, verified by statements of truth.

The Trust’s application to commit Sean Murphy relies upon allegedly false statements made by Mr Murphy both to medical experts and in documents verified by statements of truth in respect of three assertions –

As to Mr Murphy’s assertion that he had been unable to work since the surgery to his left arm in 2017, the Trust relies on the following facts –

As to Mr Murphy’s assertion that he had been unable to play rugby since the surgery to his left arm in 2017, the Trust relies on the following facts –

As to Mr Murphy’s assertion that he had been suffering from loss of strength in his left arm since the surgery in 2017, the Trust relies on the following facts –

The Trust’s case is that Mr Murphy is in contempt of court in relation to his claim for damages for clinical negligence in that –

There was no dispute between Counsel as to the applicable legal principles.

The burden is on the Claimant, the Trust, to prove each of the allegations of contempt made against the Defendant, Sean Murphy. The standard of proof is the criminal standard of proof. The Trust must prove the allegations of contempt beyond reasonable doubt.

It was common ground that the approach I should take is that summarised by Stewart J in [9] of AXA Insurance UK plc v Rossiter [2013] EWHC 3805 (QB) –

Mr Bradley also invited me to follow the approach stated by Spencer J in [35] of Calderdale and Huddersfield NHS Foundation Trust v Atwal [2018] EWHC 961 (QB) –

Again, there was no dispute between Counsel that I should be guided by the same approach. Indeed, I understood the common position of counsel to be that in the present case also, the real thrust of the Trust’s application to commit Sean Murphy is that Sean Murphy quite deliberately set out to deceive the doctors and other experts about the extent of disability in his left arm, and that he verified by a statement of truth assertions of fact in his particulars of claim, and in his preliminary schedule of loss, consistent with the things he had told the medical experts knowing those statements to be false.

The evidence before the court comprises the evidence submitted on behalf of the Trust –

Mr Hansen is a solicitor in the firm of solicitors instructed by the Trust. He produces as exhibits a number of paper and electronic documents upon which the Trust relies as evidence in support of its allegations of contempt. In paragraphs 16 to 20 of his affidavit, Mr Hansen identifies and explains those documents which are said to establish Mr Murphy’s false statements in respect of his inability to work since the accident to his left arm in March 2017. In paragraphs 21 to 24 of his affidavit, Mr Hansen identifies and explains those documents which are said to establish Mr Murphy’s false statements in respect of his inability to play rugby since the accident to his left arm in March 2017. In paragraphs 25 to 28 of his affidavit, Mr Hansen identifies and explains those documents which are said to establish Mr Murphy’s false statements in respect of his alleged weakness in his left arm since the accident to his left arm in March 2017.

Although Mr Hansen was cross-examined on his evidence given in his affidavit and in relation to a number of the documents exhibited to his affidavit to which he refers, I bear in mind that Mr Hansen claims no personal or direct knowledge of the facts which are alleged by the Trust to establish Mr Murphy’s alleged acts of contempt of court. Put another way, the court is as well placed as Mr Hansen to review the documents exhibited to his affidavit; and to consider the degree to which those documents establish the facts upon which the Trust relies.

One of the documents exhibited by Mr Hansen is a witness statement made by Mr Ben Oseman and dated 22 September 2021. I understand that Mr Oseman’s witness statement was before the Deputy Judge at the hearing of Mr Murphy’s claim on 11 October 2021 and that Mr Oseman gave evidence at that hearing. Mr Oseman was not called to give evidence before me. In answer to a question in cross-examination, Mr Hansen said that the Trust had attempted to locate Mr Oseman with a view to his giving evidence in the present proceedings, but had been unable to do so. Mr Bradley did not object to the admission of Mr Oseman’s witness statement. However he submitted, correctly, that he had not had the opportunity to cross-examine Mr Oseman, that Mr Oseman had not made a witness statement in support of the Trust’s application to commit and that his witness statement dated 22 September 2021was no more than an exhibit to Mr Hansen’s affidavit.

In contrast to Mr Hansen, Mr David Limb is able to give evidence from his own knowledge of statements made to him by Mr Murphy during the course of Mr Limb’s examination of Mr Murphy on 22 August 2020. Although Mr Limb did not produce his report until 25 October 2021, he had made manuscript notes of what Mr Murphy said to him during his examination on 22 August 2020. I had the benefit both of those manuscript notes and a typed transcript of those notes. Those notes are consistent with Mr Limb’s evidence in paragraph 10 of his affirmation of what Mr Murphy told him at his examination appointment on 22 August 2020.

Mr Limb answered the witness summons to attend the hearing of this application to commit on 11 July 2024 in order to give oral evidence. He was not called to give evidence, as Counsel for Mr Murphy told the court that he did not seek to cross examine Mr Limb on his affirmation.

I accept Mr Limb’s evidence in his affirmation sworn on 22 January 2024. In particular, I find that Mr Limb’s account in paragraph 10 of his affirmation of what Mr Murphy told him at his examination appointment on 22 August 2020 is true and accurate. I give full weight to Mr Limb’s evidence.

I now turn to consider each of the three elements of contempt alleged by the Trust against Mr Murphy.

In the light of Mr Murphy’s plea of guilty in respect of his alleged inability to play rugby since the accident, it is convenient to begin with what remains in dispute as to the basis of that plea. I shall then explain my findings in relation to the alleged loss of strength in his left arm and, finally, deal with the question of his inability to work.

Mr Murphy has admitted that his statements made in his Particulars of Claim and Preliminary Schedule of Loss that he was unable to play rugby since the accident in March 2017 were untrue. He has further admitted that in making those false statements, he has interfered with the due administration of justice and in respect of the allegations relating to his inability to play rugby, has acted in contempt of court.

The basis of his plea is that he cannot recall whether he directly told the experts that he had been unable to play rugby since the accident, or whether he failed to correct an expert if such a proposition was put to him during the medical examination. Either way, he accepts that if the experts inadvertently gained the impression that he had stopped playing rugby altogether following his injuries, he ought to have corrected the position.

Mr Murphy states that his false statement that he had been unable to play rugby since the accident was made because in his own mind, he was not playing rugby to anywhere near the high standard he had enjoyed previously. Subjectively, he did not consider that he was playing rugby because his engagement in the games that he did play was limited.

In [10] of his affirmation, Mr Limb states that on 22 August 2020 Mr Murphy told him that since the first operation he had not picked up a rugby ball. Mr Limb says that Mr Murphy volunteered this information and did not suggest that he had played rugby at a lesser standard than previously.

In [23] of his report, Mr Kurer records Mr Murphy as telling him on 29 October 2018 that Mr Murphy was a keen rugby player, that he trained twice a week and played once a week and he also went to the gymnasium regularly to maintain his strength and fitness. All that had finished. He said that he had put on around two stone in weight because he had not been able to train and play rugby.

In [4.03.9] of his report, Dr Haynes records Mr Murphy as telling him on 6 February 2019 that he could no longer play rugby, which had been his passion and major hobby. At [4.04.1] Mr Murphy is recorded as saying that rugby had been his passion and his main stress relief – it was very difficult not being able to play.

In [6.13] of his report, Dr Jenkins records Mr Murphy as telling him on 17 August 2020 that SM used to play rugby and he used to go daily to a local gym.

Mr Murphy’s Particulars of Claim served on 1 February 2021 at [36] stated “He is unable to play rugby or to attend the gym which he previously enjoyed”.

On the basis of Mr Limb’s unchallenged evidence and these reported statements made by Mr Murphy to other medical experts on the occasions on which they examined or interviewed him, I am satisfied to the criminal standard that, on each occasion, Mr Murphy deliberately lied to each medical expert, by volunteering the false information that he had been unable to play rugby since he suffered the injury to his left arm on 25 March 2017. I reject his assertion made on 8 December 2023 in his basis of plea that he cannot recall whether he directly told the experts that he had been unable to play rugby since the accident. I am in no doubt that Mr Murphy was well able to recall that he had consistently and deliberately told the medical experts that he had not been able to play rugby since his accident, and that he had done so knowing that to be untrue. His assertion that he failed to correct an expert if such a proposition was put to him during the medical examination is also untrue. The evidence of Mr Limb shows that Mr Murphy volunteered the false information that he had been unable to play rugby since his injury in March 2017. The record of what he said to the other medical experts shows that he did the same in his interviews and examinations with them.

Mr Murphy’s assertion that in his own mind, he was not playing rugby to anywhere near the high standard he had enjoyed previously and did not consider that he was playing rugby because his engagement in the games that he did play was limited, was made for the first time in his basis of plea on 8 December 2023. Had he truly been of that state of mind when he was interviewed by the medical experts, it is very difficult indeed to understand why he did not raise that with them. In particular, at least some explanation is needed as to why Mr Murphy did not raise that matter with either of the two consultant psychiatrists who interviewed him in relation to the alleged impact of his injury and subsequent surgery on his mental health. Mr Murphy has offered none.

Mr Hansen has produced as exhibits to his affidavit certain local press reports and entries from social media which are said to demonstrate that Mr Murphy returned to playing rugby by October 2017 at the latest, that is to say long before he was first interviewed by Mr Kurer on 29 October 2018.

The earliest report is taken from the website of Ross Rugby Football Club. It provides a match report of a game played between Ross 2nds and Hucclecote 2nds in late March 2017. Sean Murphy is mentioned as having played in Ross 2nds’ front row on that day.

The next report is also taken from the Ross RFC website. It reports a match played on 12 November 2017 between Ross 2nds and Tewkesbury 2nds. The Ross 2nds front row is reported as including Sean Murphy, and is said to have “bullied their opposite numbers for the entire game”.

In paragraph 12 of his affirmation, Mr Limb draws attention to Mr Murphy’s medical records, which includes a note of Mr Murphy having been seen by his GP on 27 November 2017, said to be due to his having suffered a head injury whilst playing rugby on the previous weekend.

There is then a match report taken from the website of the Ross Gazette dated 7 February 2019 of a rugby game played between Ross 2nds and Tenbury 2nds. Sean Murphy is again mentioned as having played in the Ross 2nds’ front row during that game.

Social media posts by Ross RFC on 11 January 2019, 25 January 2019, 8 March 2019, 14 March 2019 and 30 March 2019 all record Sean Murphy as being selected to play for Ross 2nds in rugby games on or around those dates.

On the basis of this evidence, I find as a fact that from November 2017 onwards, Mr Murphy was able to turn out and be selected regularly to play as a front row forward for Ross RFC 2^nd XV, the very team for which he had been playing in March 2017 at the time when he sustained the injury to his left arm. I am satisfied to the criminal standard that Sean Murphy’s standard of play from no later than November 2017 was sufficient to enable him to secure regular selection as a front row forward for the team for which he had being playing at the time of his injury. Given these facts and that there is no evidence of Mr Murphy having raised with the consultant psychiatrists (or at all) the assertion that in his own mind, he was not playing rugby to anywhere near the high standard he had enjoyed previously and did not consider that he was playing rugby because his engagement in the games that he did play was limited, I reject that basis of his plea on 8 December 2023 as untrue.

In [10] of his affirmation Mr Limb says that on 22 August 2020 Mr Murphy told him that prior to his injury and operation in 2017 he had been a gym enthusiast famed for his strength and holding records for lifting. Since the third operation on 29 June 2017, whilst he had tried to go back to his pre-injury gym routine, he had only felt able to return to the gym recently and then could only manage cardiovascular work on exercise bikes. Mr Murphy told Mr Limb that he had suffered a reduction in grip strength since the injury and operations, such that he now suffered with poor grip in his left hand. He could not lift the weight of more than an empty kettle with his left hand.

On 29 October 2018, Mr Murphy told Mr Kurer that he continued to require assistance with heavy lifting tasks which require two arms and dressing on his left side. Mr Murphy told Mr Kurer that his grip strength in his left hand was reduced.

On 6 February 2019 Mr Murphy told Dr Haynes that he found it difficult to carry things and dress his left side; and that he had reduced grip and forearm strength in his left arm.

On 17 August 2020, Mr Murphy told Dr Jenkins that he would find it difficult to hold a saucepan in his left hand and things which required two-handed work, such as putting things in the oven, were difficult.

In [36] of his Particulars of Claim, Mr Murphy asserted that his grip strength in his left hand was reduced. In his Preliminary Schedule of Loss, Mr Murphy asserted that he required assistance with heavy lifting tasks which require two arms and with dressing the lower half on his left side. Mr Murphy claimed special damages to cover the past and future cost of care and assistance with heavy lifting tasks and dressing his left side.

The Trust’s contention that Mr Murphy’s statements as to the lack of strength in his left arm were false, and that he knew them to be false when he made them, is primarily founded upon video evidence provided by Mr Oseman and now exhibited to the affidavit of Mr Hansen.

There are a substantial number of such videos. The common theme is that they appear to show Mr Murphy lifting heavy weights with either both arms or his left arm both in a gym setting and in what appears to be his back garden. On behalf of Mr Murphy, Mr Bradley makes some important points about the reliability of this evidence, as the basis for proof beyond reasonable doubt of Mr Murphy having falsely and deliberately misled the medical experts about the strength or weakness of his left arm since his injury and operation.

None of the videos are dated. Out of the 33 videos which appear in the trial bundle, only two are said by the Trust to show evidence of Mr Murphy’s post-operative scarring on his left arm. Without evidence of the dates on which the videos were taken, even those two videos which are found to show those scars cannot reliably be said to prove that Mr Murphy knowingly misled the medical experts, unless the videos can be dated. As Mr Bradley put it, in the absence of knowing the date, it is difficult to use the video footage as an evidential basis to compare Mr Murphy’s reported function as against his actual function at the time of the medical evidence.

There is some force in these arguments. In particular, I would find it very difficult to accept undated video evidence of Mr Murphy lifting heavy weights, without it being possible to detect the post-operative scars on his left arm, as capable of reaching the requisite standard of proof. There would almost inevitably be a residue of reasonable doubt as to whether, in each case, the video had been shot prior to the events of late March 2017.

Conversely, however, if the Trust is able to point to video evidence of Mr Murphy lifting heavy weights using his left arm in which the post operative scars are clearly visible, such evidence will be capable of supporting a finding to the requisite standard of proof, particularly if it can be shown that the video footage in question was shot prior to at least one of Mr Murphy’s statements about the loss of strength in his left arm. That is the corollary to Counsel’s submission.

I return to the unchallenged evidence of Mr Limb. In [12c] of his affirmation, Mr Limb attests to the fact that 41 videos of Mr Murphy exercising have been passed to him, showing Mr Murphy performing numerous lifts with heavy gym equipment. Mr Limb states that the videos are not dated. He further states that in a number of the videos the scarring on Mr Murphy’s lateral left elbow is clearly visible.

During the hearing, I was asked to view videos 8 and 27.

In video 8, Mr Murphy is seen repeatedly lifting a weighted bar with both arms over a period of some 20 seconds. The location appears to be a private garden. The posture in which Mr Murphy is performing the lift is plainly one which depends upon significant strength in the biceps of both arms of the lifter. Mr Murphy’s post-operative scarring is clearly visible on his left arm. The video footage can thus be confidently dated to no earlier than 29 June 2017 (the date of Mr Murphy’s third and final operation). I was informed by Counsel that the website showed video 8 to have been uploaded onto YouTube on 17 August 2020. The video footage shown in video 8 must therefore have been shot prior to Mr Murphy’s interview with Mr Limb on 22 August 2020.

In video 27, Mr Murphy is seen lifting and repeatedly swinging back and forth with both arms between his legs a kettle bell with “20KG” printed upon it over a period of some 40 seconds. The location appears to be a private kitchen. The posture in which Mr Murphy is performing the lift and swinging the kettle bell is plainly one which depends upon significant strength in the biceps of both arms of the lifter. Mr Murphy’s post-operative scarring is clearly visible on his left arm. The video footage can thus be confidently dated to no earlier than 29 June 2017 (the date of Mr Murphy’s third and final operation). I was informed by Counsel that the website showed video 27 to have been uploaded onto YouTube on 13 September 2020. The video footage shown in video 27 may therefore have been shot prior to Mr Murphy’s interview with Mr Limb on 22 August 2020; but must have been shot within no more than some 3 weeks after that interview.

The Trust is, therefore, able to point to video footage of Mr Murphy lifting heavy weights using his left arm in which the post operative scars are clearly visible. Both videos 8 and 27 provide such footage. Video 8 must have been filmed on a date no later than 17 August 2020, the date on which it was uploaded to YouTube. Five days later, Mr Murphy told Mr Limb that he had experienced and continued to experience such a loss of strength in his left arm that he could no longer lift anything heavier than an empty kettle with his left hand. Video 27 must have been filmed on a date no later than 13 September 2020, the date on which it was uploaded to YouTube. Although that date comes some three weeks after Mr Murphy made that statement to Mr Limb, the fact that some three weeks later Mr Murphy was able to lift and to swing a 20 kilogram weight with both arms for a sustained period of 40 seconds calls for explanation. Mr Murphy has offered none.

In the light of the evidence provided by videos 8 and 27, I am satisfied to the criminal standard that Mr Murphy’s statement to Mr Limb on 22 August 2020, that he continued to have poor grip strength and that he could lift nothing heavier than the weight of an empty kettle with his left hand, was false. The video footage in videos 8 and 27 proves beyond any reasonable doubt that at the time when Mr Murphy made that statement to Mr Limb, he was experiencing no significant weakness in the strength of his left arm and his ability to lift with that arm. I am satisfied to the criminal standard that when Mr Murphy made that statement to Mr Limb, he did so deliberately, knowing that it was false and without any honest belief in its truth.

These findings are reinforced by my findings in relation to Mr Murphy’s ability to play rugby on a regular basis as a front row forward since November 2017. It is utterly fanciful to suggest that Mr Murphy could have done so since 2017, had he genuinely been so weakened in the strength of his left arm that he was unable to lift a weight heavier than an empty kettle. Mr Murphy came to interview with Mr Limb on 22 August 2020 knowing full well that he had resumed playing rugby regularly since late 2017, and that he had the ability in his left arm to lift weights on a sustained basis in a posture which placed significant strain on his biceps. Mr Murphy deliberately and blatantly lied.

For the same reasons, I am satisfied to the criminal standard that the similar assertions made by Mr Murphy in [36] of his Particulars of Claim and in his Preliminary Schedule of Loss, were false and that Mr Murphy caused those documents to be verified knowing those assertions to be false and without any honest belief that they were true.

In [10(b)] of his affirmation, Mr Limb states that on 22 August 2020 Mr Murphy told him that he had not put in a day’s work since he sustained his injury on 25 March 2017. Mr Murphy told Mr Limb that following the third surgery on 29 June 2017 he had shut down his company as he realised that he would never get back to heavy manual work. Due to the pain in his left arm, he had not looked for work since that time.

In [20]-[22] of his report, Mr Kurer records Mr Murphy as telling him on 29 October 2018 that he was a builder and worked in a two-man company with his father-in-law. The company specialised in doing ground work which included digging foundations, footings, draining and slabbing. This was the heaviest building work as it almost always involved a great deal of digging by hand. Mr Murphy told Mr Kurer that essentially, he had not been back to work. He just could not do that sort of work at all. He and his father-in-law had done almost no work that year (2018). Mr Murphy had done a few ‘light duties’ building jobs but essentially he was quite incapable of doing the work he was doing before.

In [4.03.9] to [4.03.10] of his report, Dr Haynes records Mr Murphy as telling him on 6 February 2019 that he was unable to work; and because he was unable to work, his wife had had to increase her hours of work and now worked full time as a care assistant. Their finances were tight.

In [4.11] of his report, Dr Jenkins records Mr Murphy as telling him on 17 August 2020 that he worked with his father-in-law trading as CLL Contracting [‘CLL’], a building and construction company which undertook roadworks and ground works. He was classed as a self-employed sole trader. At [5.2], Mr Murphy is reported to have told Dr Jenkins that the work that he and his father-in-law undertook was heavy work with a lot of humping and carrying.

At [6.1], Dr Jenkins records Mr Murphy as stating that he had undertaken no work since the accident.

Mr Murphy’s Particulars of Claim at [36] state “He is no longer able to work as a builder and has been unable to return to work since the index events”; and at [37] “He is handicapped in the open labour market”.

In his Preliminary Schedule of Loss, Mr Murphy asserted that he had been unable to return to work as a self-employed builder. His main job involved heavy manual building tasks such as laying groundwork and as a result of his persistent elbow symptoms he had been unable to return to this. He said that he had been advised that but for the negligence, he would have returned to work six months after surgery. He claimed for total loss of earnings on that basis for the period 30/09/2017 to 29/01/2021 in the sum of £108,444.78. Insofar as his claim for future loss of earnings was concerned, it was based on the difference between what he would have earned on an average annual basis had he been able to continue his building work and what he might now expect to earn looking forward working as a light goods delivery driver, a taxi driver or in customer services. That difference was calculated to be £11,410 per annum which capitalised over the remainder of his working life gave a total claim for loss of earnings of £356,562.50.

The Trust’s case is that Mr Murphy had in fact returned to building work with CLL by May 2018. Mr Hansen produced as an exhibit Facebook posts which he said demonstrated that Mr Murphy had returned to work laying tarmac drives and constructing decking and fencing by July 2018, prior to Mr Murphy’s examination by Mr Kurer on 29 October 2018 and Dr Haynes on 6 February 2019.

The CLL Facebook posts include one dated 11 May 2018 which stated “Few jobs done lately”. On 19 July 2018, there was a post from CLL stating “Raised decking job in western”. On 19 July 2018 a post stated “Tarmac drive and fence in Hereford”. On 24 July 2018 a post stated “Tarmac drive Hereford”. On 3 August 2019 a post stated “Another happy customer. Tarmac drive Hereford”.

Mr Bradley pointed out that none of these posts by CLL was direct evidence of Mr Murphy actually undertaking any work, let alone heavy building work. Moreover, Mr Kurer records Mr Murphy as having stated that he had been able to undertake a few light duty building jobs. It was incorrect for the Trust and for Mr Hansen to assert that Mr Murphy had told “all four medical experts” that “he was unable to work and had not been able to work since the accident”.

The Trust also relied on evidence that on 28 June 2019, Mr Murphy applied to Companies House to set up a company called Sanctuary Supplements Ltd [‘SSL’] and thereafter ran a business selling supplements which had its own Facebook page. Mr Hansen exhibited the documents which attested to the formation and registration of SSL. A Facebook post dated 8 January 2020 gave Mr Murphy’s home address as the address for SSL supplements store. SSL was incorporated on 1 July 2019 with Mr Murphy named as SSL’s sole director.

Mr Bradley pointed out that SSL was dissolved on 23 March 2021. The Trust had produced no evidence of any profit which might need to be set off against Mr Murphy’s claim for past or future earnings. There was no evidence of any accounts having been filed.

Mr Bradley submitted that there was no evidence that Mr Murphy had actually carried out any heavy building work of the kind he undertook prior to his injury in March 2017. Although Mr Murphy had said to Mr Limb on 22 August 2020 that he had not done a day’s work since the accident, the court should be careful not to confuse hyperbole and exaggeration with a clear and deliberate intention to deceive. Mr Murphy had been more nuanced in what he said to Mr Kurer, acknowledging that he had done some light work. In the Preliminary Schedule of Loss, Mr Murphy had based his claim for future loss of earning openly on the basis that he expected to be able to work in delivery work or taxi driving, or in customer care. Crucially, Mr Murphy had not based his claim for loss of future earnings on the false assertion that he was no longer able to work. That, however, was the basis for the alleged contempt. The Trust was not able to prove to the requisite high standard that Mr Murphy had set out deliberately to deceive the medical experts or the court into proceeding on the basis that since his injury in March 2017 he had been, and would continue to be, unable to work. The Trust had not produced evidence which enabled the court to be sure that Mr Murphy was deliberately seeking to interfere with the administration of justice by advancing a fraudulent claim for damages based on false statements as to his inability to work since his injury.

I remind myself of the common position taken by Counsel that, in a case such as this, it is important 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. To adopt the formulation used by Spencer J in Calderdale, the real thrust of the Trust’s application for committal is that Mr Murphy quite deliberately set out to deceive the medical experts about the extent of disability in his left arm; and that he verified by a statement of truth assertions of fact in his Particulars of Claim, and in his schedule of loss and damage, consistent with the things he had told the medical experts, knowing those statements to be false.

Central to the Trust’s case is the contention that Mr Murphy deliberately set out to deceive the medical experts and the court as to his ability to resume his work in the building trade. The contention is that Mr Murphy’s motive for doing so was in order to deliberately misrepresent his earning capacity since surgery and so secure a large payment of damages for loss of past and future earnings.

I return to what Mr Murphy actually said to the medical experts.

He told Mr Kurer in October 2018 that essentially, he had not been back to work and that he was quite incapable of doing the heavy building work that he was doing before his injury and operations. He told Dr Haynes in February 2019 that he was unable to work, that as a result his wife was now having to work full time and that finances were tight. He told Dr Jenkins in August 2020 that he had undertaken no work since the accident. He told Mr Limb on 22 August 2020 that he had not worked since his injury in late March 2017, that he had shut down CLL following his surgery in later June 2017 as he realised that he would never get back to heavy manual work.

I am satisfied to the criminal standard that these statements were false. In making them, Mr Murphy intended to deceive the medical experts into a false understanding of the true impact of his injury and the surgery to his left arm. Mr Murphy did so deliberately and fully aware that he was lying about his ability to undertake heavy building work.

The evidence is clear that from November 2017 at the latest, Mr Murphy had resumed playing rugby regularly as a front row forward for the team in which he played at the time of his injury in March 2017. The evidence shows that by the date of his interview with Mr Limb in August 2020, CLL had been trading for over two years. The video footage establishes that five days before, and three weeks after, Mr Murphy told Mr Limb that he was unable to work and could not see himself returning to heavy manual work, videos were uploaded onto YouTube showing Mr Murphy lifting heavy weights with the post operative scarring visible on his left arm.

On the basis of this evidence, I am satisfied to the criminal standard that Mr Murphy was able to undertake heavy building work of the kind that he had undertaken with CLL from no later than November 2017 onwards. The overwhelming inference is that he was carrying out such work regularly with CLL from May 2018 onwards. When he told each of the four medical experts that since his injury and surgery he was no longer able to undertake the heavy building work he had done before, he was deliberately deceitful. On each occasion, he well knew that he was lying and had no honest belief in the truth of what he said.

I am satisfied to the criminal standard that Mr Murphy maintained that deliberate deception in both [36] and [37] of the Particulars of Claim and in his Preliminary Schedule of Loss, which included the false statement that he was unable to work which he deliberately and falsely verified as true. In particular, he lied as to his ability to resume his former work as a builder following the injury and surgery to his left arm. He did so knowingly, with the dishonest intention of grossly exaggerating his claim for past and future loss of earnings by asserting, falsely, that he would in future be limited to other less lucrative trade or employment.

I find the allegations of contempt made by the Trust against Sean Murphy to have been proved to the criminal standard of proof.

Sean Murphy is in contempt of court in that he has interfered with the due administration of justice by giving false information to four medical experts who provided reports to the court.

Sean Murphy is in contempt of court in that he made false statements in documents verified by a statement of truth, namely the Particulars of Claim and Preliminary Schedule of Loss.

The false information was that since and by reason of his injury and surgery in 2017 –

In each case and on each occasion, Sean Murphy gave that false information knowing that it was false, without any honest belief that it was true and knowing that it was likely to interfere with the course of justice.