UK Insurance Limited v Syed Mohammed Yusuf Ali & Ors

By these applications, UK Insurance Limited seeks permission to apply for the committal to prison of Syed Mohammed Yusuf Ali, Syeda Kauser and Syeda Fatima Tul-Zahara in respect of statements made by each of the siblings about a road traffic accident that occurred on 11 February 2016.

The accident happened on the slip road leading on to the M25 at junction 13 and involved three cars. The lead car was a Vauxhall Breeze that was owned by Syed Ejaz Hussain but driven by his daughter, Ms Tul-Zahara. The second car, which collided with the back of the Breeze, was a Vauxhall Astra driven by Stephen Singers. The final car, which collided with the back of Mr Singers’ Astra, was a BMW 3 series car driven by Arlene Mosley and insured by UK Insurance.

Ms Tul-Zahara reported the accident to her father’s insurers the following day. She then said that the Breeze had been driven by her brother, Mr Ali. She claimed that he had been to hospital with back and neck pain and had been given painkillers.

On 26 June 2016, Mr Ejaz Hussain issued a claim in respect of the damage to his car. The claim was supported by statements made by, among others, Mr Ali and Ms Kauser:

In addition, a personal injury claim was notified by Lance Mason on behalf of Ms Kauser on claim notification forms dated 11 May and 12 December 2016 asserting that she had suffered injury in the accident.

Ms Mosley insisted that the driver of the Breeze was an Asian woman in her mid-30s to 40s. She pleaded that this was a staged accident in which the driver of the Breeze had deliberately braked in order to cause an accident.

The case initially came on for trial on 12 June 2018. Mr Singers then disclosed photographs taken on his mobile phone which indicated that the driver of the Breeze had indeed been a woman and that her passenger was none of the people previously said to have been in the car. The case was adjourned.

Subsequently, Mr Ejaz Hussain amended his claim. He now pleaded that Ms Tul-Zahara had been the driver. Further, he asserted that none of Mr Ali, Ms Kauser or Mr Akeel Hussain had been in the car. He sought to recover the value of his written-off car in the sum of £1,430 and credit hire charges of over £92,000.

On 15 January 2019, Ms Tul-Zahara made a statement accepting that she had been the driver. She said that she had panicked because she did not want her father to find out that she had been out all night and stayed with other men. She therefore provided her brother’s details to the other drivers. Ms Tul-Zahara said that she begged her siblings to protect her from her father’s wrath.

The adjourned trial was heard by His Honour Judge Simpkiss in Brighton. It opened in March 2020, shortly before the first COVID-19 lockdown, but the evidence did not conclude until March 2021 when it was again possible to conduct hearings in person. The judge heard submissions in the following month and circulated his draft judgment on 6 July 2021. It was not, however, handed down until 25 February 2022.

Mr Ali retracted his earlier statement and wrote an undated handwritten letter of apology to the judge. He expressly admitted that he had given a false statement to the court and added:

At trial, neither Mr Ali nor Ms Kauser gave evidence. Ms Tul-Zahara gave evidence that she had been speeding up to join the motorway when her car was hit from behind.

Upon the judge’s findings, this was a staged accident deliberately caused by Ms Tul-Zahara slamming on her brakes in order to cause a collision and allow people claiming to have been in the Vauxhall Breeze to submit claims for minor injuries. At [77]-[80], he said:

Judge Simpkiss dismissed Mr Ejaz Hussain’s claims and found Ms Tul-Zahar solely liable for the accident. Further, he found Mr Ali, Ms Kauser and Ms Tul-Zahara jointly liable in the tort of deceit for conspiring to stage a collision with a view to profit. The judge entered judgment for Ms Mosley against the siblings in the sum of £10,713.80. Further, the judge entered judgment for Mr Singers against Ms Tul-Zahara in the sum of £4,203.

In addition, the judge ordered Mr Ali, Ms Kauser and Ms Tul-Zahara to pay Ms Mosley and Mr Singers’ costs of the proceedings on the indemnity basis. Further, they were ordered to make payments on account of such costs liabilities totalling £80,000. While I have not been told the total costs claimed against them in the County Court proceedings, I infer that it is likely to be over £100,000 given the usual cautious approach taken by judges in assessing the appropriate level of payments on account.

Judge Simpkiss ordered that any committal application should be filed and served by no later than 8 April 2022. The applications now before the court were made on 4 April 2022. The judge directed on 13 April 2022 that the applications should be referred to the High Court. Nevertheless, no progress was made for a year. While that delay is not explained in either the evidence or submissions before me, I note that, by an order made on 1 June 2023, Soole J observed that none of the parties were responsible for such delay.

The applications for permission came before Soole J on 28 June 2023. While the defendants then appeared in person and an adjournment was appropriate in any event in order to afford them an opportunity to obtain representation, UK Insurance’s counsel also accepted that the hearing bundle was inadequate and directions were given for a replacement bundle to be prepared. While the defendants were served with the new bundle, my ability to prepare properly for this hearing was frustrated by the claimant’s failure to provide that bundle to the court until after court hours the day before this hearing.

UK Insurance seeks to pursue a number of allegations of contempt:

The applications are supported by the affidavit of Andrew Burkitt. No evidence has been filed in response.

Rule 81.3(5) of the Civil Procedure Rules 1998 provides:

Permission is undoubtedly required to bring contempt proceedings in relation to the allegations that these defendants made false statements in witness statements and claim notification forms: r.81.3(5)(b). Permission is not, however, required pursuant to r.81.3(5)(a) in respect of allegations that they interfered with the due administration of justice in relation to “existing” court proceedings.

Paul McGrath, who appears for UK Insurance, contends that permission is not therefore required in this case to pursue the allegations of interference with the due administration of justice. He relies on Bacon J’s reasoning in Care Surgical Ltd v. Bennetts [2021] EWHC 3031 (Ch), at [7], and points out that in this case the insurer expressly indicated its intention to make contempt applications before Judge Simpkiss sealed the order dismissing the County Court proceedings.

Simon Clarke, who appears for Ms Kauser, agrees with Mr McGrath’s analysis that permission is not required to pursue allegations 4-5 against her. The other defendants take a different view:

In Care Surgical, Bacon J considered the scope of the exception. She observed, at [7]:

The proper construction of r.81.3(5)(a) was further considered by Lane J and Mark Ockelton, then respectively the President and Vice President of the Upper Tribunal (Immigration & Asylum Chamber), in YSA v. Associated Newspapers Ltd [2023] UKUT 00075 (IAC). Mr Ockelton observed, at [31], that the termination of proceedings may be irrelevant in cases like Care Surgical where the alleged contempt “relates so intimately to the conduct of the trial” but questioned whether it could be irrelevant in all cases. The exception, the tribunal held, was not applicable where the alleged contempt arose from disobedience with an order made in proceedings which were over and where it could not be said that the alleged contempt had any effect on the proceedings at the time.

In this case, the allegations of interference with the due administration of justice are all pleaded as having been committed “on a date or dates between 11 February 2016 and 12 June 2018”; i.e. between the date of the accident and the date of the ineffective trial. The allegations therefore span both the pre-issue period after the accident (11 February to 26 April 2016) and the post-issue period between 26 April 2016 and 12 June 2018. No party has, however, addressed me on the consequences, if any, of the allegations spanning those two distinct periods of time and whether permission is therefore required because of the inclusion of the pre-issue period during which there were no proceedings. As to that point, I note that despite the breadth of the pleaded date range, the allegations are further pleaded as conspiracies or the encouragement and persuasion of others to cause false statements to be made in action C32YM153. Further, such statements were of course made post-issue on 18 October 2017.

Even if the allegations of interference with the due administration of justice are made in relation to existing proceedings within the meaning of r.81.3(5)(a) as explained by Bacon J, that is not the end of the matter since there is force in the submission that the court should consider the true nature of each allegation and not simply the label given to it by the claimant. Most obviously an allegation that a defendant interfered with the due administration of justice in existing proceedings by him or herself making a false statement in a document verified by a statement of truth should, in my judgment, be regarded as in substance an allegation that falls within r.81.3(5)(b). The important issue of whether permission is required cannot turn on the skill of the draftsman but must be approached on the basis of the true substance of the allegation.

I am fortified in that view by the decision in Cole. At [23], Trower J expressed the view that an allegation formulated as an interference with the due administration of justice was at least arguably also made in relation to a false statement. Further, at [24], Trower J observed that even if permission is not required the court might properly consider staying contempt proceedings based on the interference ground if permission is refused on the same allegation formulated as a false statement of truth in accordance with the guidance in TBD (Owen Holland) Ltd v. Simons [2020] EWCA Civ 1182, at [239]. Foxton J took the same approach in Verlox International Ltd v. Antoshin [2023] EWHC 86 (Comm), at [30].

In Verlox, Foxton J referred to the position where a legal representative makes a statement verified by a statement of truth on behalf of a client. Such verification is taken as confirming the client’s belief in the truth of the contents of the statement: Practice Direction 22,paras 3.7-3.8. In such a case, I agree with Foxton J that the position cannot be different simply because the allegation is that the defendant authorised and caused his solicitor to make a statement rather than directly making it in his own name: Verlox, at [31].

There is, however, a difference between an allegation that a defendant interfered with the administration of justice by him or herself making a false statement in a document verified by a statement of truth (whether directly or by authorising a legal representative), and the position where it is alleged that the defendant caused or encouraged some other person to make the false statement. I venture the view that the gravamen of the former case is the making of a false statement while in the latter it is the interference with the administration of justice in causing or encouraging another person to pursue a false case or mislead the court.

Nevertheless, the issue of whether Mr McGrath is right to submit that permission is not needed to pursue the interference allegations is not for me since the short point is that he confirms that UK Insurance does not seek the court’s permission in respect of such allegations. Further, there is no application before me to strike out these allegations for failure to seek such permission or to stay the allegations. Accordingly, the only issue before me is whether the court should grant permission pursuant to r.81.3(5)(b) to allow the false statement allegations to be pursued. In considering that issue, I accept Mr Stern’s submission that I should leave out of account the disputed question of whether these defendants will in any event have to answer the interference allegations. A similar approach was taken by Trower J in Cole, at [24].

It is common ground that the evidence before the court discloses a strong prima facie case of contempt against each defendant. The issues in this case are therefore public interest, proportionality, and the proper application of the overriding objective.

For the insurer, Mr McGrath submits that the deliberate making of a false statement will usually be so inherently serious that nothing other than an order for committal to prison will be sufficient. He particularly relies on dicta in Liverpool Victoria Insurance Co. Ltd v. Zafar [2019] EWCA Civ 392, [2019] 1 W.L.R. 3833, and contends that it is therefore in the public interest to bring these committal proceedings. Anticipating the argument that the public interest has been served by the judge’s findings at trial, he counters that it is more important to punish contempts that are persisted in to trial. As to proportionality, Mr McGrath argues that the particulars are tightly drafted and the evidence will not be likely to be extensive. This would, he submits, be a day’s case in which the claimant’s costs would be likely to be limited to around £30,000. As to the overriding objective, Mr McGrath argues that it would clearly be just and an appropriate use of public resources to allow these serious allegations to go forward to a final hearing.

For Mr Ali, Mr Stern urges great caution and submits that the proper application of the permission filter should only lead to the most egregious cases going forward. He argues that these proceedings rehearse matters already canvassed in the judgment of Judge Simpkiss. Relying on the reasoning in Stobart Group Ltd v. Elliott [2014] EWCA Civ 564, he argues that the overall reality is that these matters have been canvassed, determined, and remedied in the County Court proceedings and that such consideration diminishes both the public interest and proportionality of bringing committal proceedings. Relying on observations in Frain v. Reeves [2023] EWHC 73 (Ch), Mr Stern argues that Mr Ali has already paid for his dishonesty. Indeed, he points to evidence that Mr Ali is unemployed and in receipt of Job Seekers’ Allowance thereby making the liabilities incurred in the County Court litigation ruinous. He also relies on Mr Ali’s fulsome apology to the court. Mr Stern observes that the court did not itself initiate contempt proceedings and questions whether it is either in the public interest or proportionate to allow an insurer to pursue contempt proceedings. Mr Stern also asks the court to consider delay given that these committal applications concern matters going back to 2016. Finally, Mr Stern invites the court to consider whether it is in the public interest to list civil contempt cases while pressure on the prison estate remains at such a high level.

For Ms Kauser, Mr Clarke adopts Mr Stern’s submissions as to the law. He stresses that Ms Kauser did not give evidence at the trial and also relied upon the delay in this case. Notwithstanding Judge Simpkiss’s rejection of Ms Tul-Zahara’s explanation, Mr Clarke insists that the defendants come from a strict Muslim family and that Mr Ejaz Hussain was very much head of the family. He points to the fact that the defendants will be in receipt of civil legal aid and to the enquiries that he says will be required including as to Ms Kauser’s understanding of English, her ability to give evidence and the possible need for an intermediary and an interpreter. Such concerns are, however, the subject of submissions from the bar and are not grounded upon any evidence before the court.

For Ms Tul-Zahara, Mr King also adopts Mr Stern’s submissions. He adds that Ms Tul-Zahara’s position differs in that she gave oral evidence at the trial. He submits that any dishonesty on her part has been exposed and dealt with and that contempt proceedings are not now necessary to protect the integrity of the court process. He submits that she has been punished by the findings and orders made at trial and that this application is a sledgehammer to crack a nut. While he also argues that the initial deception as to who was driving was unsophisticated, as explained above UK Insurance does not seek permission in respect of the allegations of knowing interference.

The applicable principles are not in dispute. Permission should only be granted to make a contempt application pursuant to r.81.3(5)(b) where:

In this case, each defendant has formally conceded for the purposes of this permission application that there is a strong prima facie case. In those circumstances, it is neither necessary nor appropriate to say anything further about the merits of the applications: KJM Superbikes Ltd v. Hinton [2008] EWCA Civ 1280, [2009] 1 W.L.R. 2406, at [20], Moore-Bick LJ, and Stobart, at [44(viii)], Gloster LJ.

In Stobart, Gloster LJ gave the following further guidance at [44(vii)]:

In Cavendish Square Holdings BV v. Makdessi [2013] EWCA Civ 1540, Christopher Clarke LJ gave similar guidance at [79]. He said that whether an application for committal is in the public interest will depend on a number of considerations including the significance of the statement in the context of the case, the clarity of its meaning, the strength of the contention that the respondent knew it to be untrue, the respondent’s status, the seriousness of the consequences of it having been made, the length of time over which, and the circumstances in which, it was maintained, and any explanation as to why it was made. While maintaining that the extent to which a false statement had been persisted in was relevant, Christopher Clarke LJ added, at [73], that an application to commit should not be regarded as inappropriate simply because the respondent recants before trial. As to this, he observed:

Against that, Gloster LJ stressed in Stobart, at [111], the need for judges to “stand back and look at the overall reality of the litigation.” She observed that the matters about which the applicant complained in the contempt proceedings had been canvassed as issues in the substantive proceedings and had led, where appropriate, to adverse consequences. Those matters militated against permission being granted. The same point was made by Whipple J, as she then was, in Newson-Smith v. Al Zawawi [2017] EWHC 1876 (QB), at [83], when she observed that the respondent had “paid literally and heavily for his misdemeanours.” See also Frain, at [20(ii)] and, at [62], where Joanna Smith J observed:

Factors in also declining to give permission for contempt proceedings against the solicitor in that case included the fact that he had corrected his statement on discovering that it was false, been cross-examined such that the court was not misled, and the judge had made highly uncomfortable and professionally embarrassing findings against him: Frain, at [87].

Summarising the principles in Newson-Smith, at [83], Whipple J added, at [6(c)(iv)], that the court must consider any delay in warning the respondents that he or she might have committed contempt.

Judges have made clear in a number of cases that considerable caution is required:

As to proportionality, Gloster LJ added in Stobart, at [44(vi)]:

In Berry, Akenhead J observed at [37]:

Liverpool Victoria Insurance Co. Ltd v. Zafar [2019] EWCA Civ 392, [2019] 1 W.L.R. 3833, was not a decision as to permission but rather an appeal as to the penalty imposed for proven contempts committed by an expert witness. The Court of Appeal observed, at [59]-[60]:

In South Wales Fire & Rescue Service v. Smith [2011] EWHC 1749 (Admin), Moses LJ stressed that the proper administration of justice is seriously damaged by false claims. He observed, at [5]:

Further, in Liverpool Victoria Insurance Co. v. Bashir [2012] EWHC 895 (Admin), [2012] ACD 69, Sir John Thomas P, as he then was, referred to the great difficulty of detecting fraudulent road traffic claims. The judge added that even “foot soldiers” in a conspiracy to make false road traffic claims valued at £5,000 to £15,000 must expect to be committed to prison.

The court must consider the case against and for each defendant and upon each ground separately: Patel v. Patel [2017] EWHC 1588 (Ch); Attorney General v. Yaxley-Lennon [2019] EWHC 1791 (QB) , [2020] 3 All E.R. 477, at [98].

In developing his submission that the current pressure in the prison estate is relevant to the court’s assessment of public interest, Mr Stern relies on an article published in The Times on 12 October 2023 about a meeting in which the Senior Presiding Judge, Edis LJ, is said to have ordered judges to delay imprisoning defendants who appear on bail. The article ran under the headline “Judges told not to jail rapists as prisons are full.” In view of the reliance upon newspaper reporting of a private meeting, I declared to the parties that I had been present at that meeting in my capacity as a Presiding Judge of the Midland Circuit. Further, I made plain that no judge had been ordered to do anything, still less to sentence any defendant other than in accordance with the law and any applicable sentencing guidelines. What is, however, public knowledge is that the prison system is under severe pressure:

While responsibility for the prison estate is a matter for the executive and not the judiciary, there are two issues for judges to consider. First, as Edis LJ observed in a judicial capacity in R v. Ali [2023] EWCA Crim 232, [2023] 2 Cr. App. R. (S) 25, judges should take into account the impact of current prison conditions until such conditions return to a “more normal” state. Such consideration will principally arise in cases like Ali where a judge is considering a short prison sentence which might properly be suspended. Secondly, judges are responsible for listing. The actual message that Edis LJ imparted at the meeting on 12 October was that the resident judges in charge of the Crown Courts across England & Wales should take into account the pressure in the prison system when deciding which cases to list. Accordingly, judges were encouraged to pause listing bail cases which might lead to an immediate custodial sentence for a couple of weeks. Such period has of course now passed.

In response to the prison capacity issue, Mr McGrath properly observes that it has never been suggested that prison conditions should be relevant to whether a criminal charge is preferred or a case taken to trial. By analogy, he submits that the court should leave prison conditions out of account when considering an application for permission to bring contempt proceedings. I agree. While, by analogy with the criminal jurisprudence, the court can properly take into account prison conditions when determining the appropriate sanction for any proven contempt, I do not consider that such conditions are relevant to the question of whether the court should give permission for committal proceedings to be brought. Indeed, where the court has found that the public interest requires a proportionate committal application that raises a strong prima facie case of contempt and is in accordance with the overriding objective, such application should be allowed to proceed regardless of whether pressure in the prison estate is ultimately likely to tip the scales in favour of a non-custodial sanction in the event that contempt is proved. I therefore leave the question of prison conditions out of account.

I am concerned that this application seeks to litigate matters going back to 2016/2017 in respect of Mr Ali and Ms Kauser and 2019 in the case of Ms Tul-Zahara. That said, contempt proceedings were plainly not appropriate until after judgment and were intimated as early as April 2022. It is unfortunate that the proceedings did not then come on for an effective permission hearing until October 2023 but no party has sought to challenge Soole J’s observation upon investigation that such delay was not the fault of the parties. Accordingly this is not a case where the claimant has unreasonably delayed, although I do – in the exercise of my discretion – take into account the overall passage of time in this case.

Allegations 1-4 against Mr Ali concern his witness statement made on 18 October 2017 in which it is alleged that he falsely claimed to have been the driver of his father’s car at the time of the accident, that Ms Kauser was a passenger and that he could give an account of the accident circumstances and immediate aftermath. While Judge Simpkiss found Mr Ali jointly liable in deceit on the basis that this was a staged accident, no such case is made either in these allegations or in allegations 5-6 which do not fall for further consideration in this judgment. This is not therefore a case in which these contempt allegations go to the heart of the fraud found by Judge Simpkiss.

I acknowledge the public interest in exposing and punishing those who make false statements in support of court proceedings. Here, Mr Ali persisted in his allegedly false account until the door of the court but did not ultimately give perjured evidence in accordance with his statement. Indeed, once the falsity of the core claim that he and Ms Kauser had been in the car was exposed, Mr Ali wrote a letter of apology to the court in fulsome terms. Further, Mr Ali has been heavily penalised by being held jointly and severally liable for the costs of the County Court proceedings. Such costs have been ordered to be assessed on the indemnity basis and were estimated before me to run to six figures. The public would not, in my judgment, take the view that there have been no consequences for his actions.

Balancing all of these factors, I do not consider that it is in the public interest, or that it would be either proportionate or just, to allow UK Insurance to apply for Mr Ali’s committal on allegations 1-4.

Allegations 1-2 against Ms Kauser concern her witness statement made on 18 October 2017 in which it is alleged that she falsely claimed to have been a passenger in a car driven by her brother at the time of the accident. Again, while Judge Simpkiss found Ms Kauser jointly liable in deceit on the basis that this was a staged accident, no such allegation of contempt is made against her.

As with her brother, this is not therefore a case in which these contempt allegations go to the heart of the fraud found by Judge Simpkiss. Again, I acknowledge the public interest in exposing and punishing those who make false statements in support of court proceedings. Ms Kauser persisted in her allegedly false account until the door of the court but did not ultimately give perjured evidence in accordance with her statement. Further, Ms Kauser has been heavily penalised by being held jointly and severally liable for the costs of the County Court proceedings. The public would not, in my judgment, take the view that there have been no consequences for her actions in making the statement of 18 October 2017.

Balancing all of these factors, I do not consider that it is in the public interest, or that it would be either proportionate or just, to allow UK Insurance to apply for Ms Kauser’s committal upon allegations 1-2.

Allegation 3 is, however, more serious since it alleged that Ms Kauser submitted a false claim notification form alleging that she had suffered injury in the accident. False claims necessarily involve a fraudulent attempt to obtain compensation to which the claimant is not entitled. Such claims are difficult to detect and put all law-abiding motorists to additional cost through increased insurance premiums. There is, in my judgment, a real public interest in holding those who make false claims to account through committal proceedings even if – as here – the claim is not pursued through to court proceedings. Accordingly, I consider that despite the fact that the claim was not pursued and the passage of time since 2016, it is in the public interest, proportionate and just to give UK Insurance permission to apply for Ms Kauser’s committal upon allegation 3. Indeed, this focused allegation can be efficiently heard at relatively modest cost.

Ms Tul-Zahara was not originally a witness in this case. While she had reported the accident to the insurers, she does not therefore face an allegation that she made a witness statement falsely stating that the car was driven by Mr Ali or that Ms Kauser had been a passenger. Her statement was only made after that original deception had been exposed. Allegation 1 against her is actually more fundamental. It is that she knowingly made a false statement on 25 January 2019 as to the accident circumstances. Specifically it is alleged that her statement falsely claimed that the accident happened as she sped up to join the motorway and was struck from behind whereas in truth, it is said, she had harshly braked just before the accident. The allegation is essentially that she staged this accident by heavy braking but then made a witness statement giving a different account of events in order to pursue a claim against innocent motorists.

Unlike the allegations in respect of the witness statements made by her siblings, this allegation does therefore go to the heart of the judge’s finding that this was a staged accident. Furthermore, Ms Tul-Zahara only made this allegedly false statement after the original deception had been exposed. She then maintained this allegedly false account at trial and gave evidence in support of such case.

While Ms Tul-Zahara has also been found liable in deceit and been ordered to pay substantial indemnity costs, there is, in my judgment, a real public interest in holding those who persist in false statements in support of staged accidents to account. I therefore consider that it is in the public interest, proportionate and just to give UK Insurance permission to apply for Ms Tul-Zahara’s committal upon allegation 1.

Accordingly: