Kirk v Walton

This is an application by the Defendant, through her insurers, for permission to bring proceedings against the Claimant for contempt of court in making false statements in documents verified by statements of truth, and without an honest belief in the truth of those statements. It arises in the following way.

On 10 August 2004 the Claimant, Joanne Kirk, now aged 45, issued proceedings against the Defendant in Stockport County Court. She claimed damages for personal injuries sustained in a minor road traffic accident, on 14 September 2001, following a collision with the rear of the Claimant’s car caused by the Defendant’s negligent driving. Liability was not disputed.

The Claimant suffered what is often described as a “rear shunt injury” in the accident. The particulars of injury set out in the Particulars of Claim referred to the Claimant, who had a history of back problems, having suffered neck pain radiating into her shoulders; and to her symptoms remaining severe and then deteriorating such that, in October 2002, she ceased altogether her work as an administrator in a university. In January 2005 her solicitors served a schedule of damages, in which the Claimant was seeking compensation in a total figure of over £800,000. Substantial sums were claimed for past and future loss of earnings and for care and assistance.

On 16 February 2005, the Defendant’s representatives paid £25,000 into court and offered to repay to the Compensation Recovery Unit the state benefits (approximately £9,000), which had by then been paid to the Claimant as a result of the injuries she alleged had been caused by the accident.

Directions were given for trial and assessment of damages in the usual way. Medical experts in orthopaedics and rheumatology were instructed by both parties and reports were exchanged. In November 2004 a consultant physician and rheumatologist, Dr McKenna, instructed on behalf of the Claimant, considered that the Claimant had developed fibromyalgia, triggered by the accident, and that she was significantly disabled. Dr Bernstein, consultant physician and rheumatologist instructed on behalf of the Defendant, considered in November 2005 that she did not have fibromyalgia when he examined her and that there was evidence of exaggeration, which raised concern as to whether that diagnosis had ever been warranted.

Meanwhile, the Defendant’s insurers carried out further investigations into the Claimant’s complaints, including video surveillance undertaken by enquiry agents showing the Claimant going about her daily life. The Defendant’s insurers contend that these investigations revealed that the Claimant’s various statements, in documents verified by a statement of truth, as to the nature and effect of her injuries and disabilities were untrue.

The DVD recordings obtained, taken on various days in March 2005 and then on dates between September and December 2005, were disclosed on 10 March 2006. In the absence of a substantive response from the Claimant the Defendant then served a Part 18 Request upon her, which included questions about the various statements she had made and the contents of the recordings. The Claimant, after initially stating that she was too unwell to provide answers, did so on 26 September 2006, after the Defendant had threatened to apply for an order that she respond to the Part 18 Request. The Defendant’s medical experts were asked to consider the DVD recordings and to comment upon them. They did so and then provided further reports, which are in the bundle before me. It is unclear whether the Claimant’s medical experts were asked to consider them or, if they did, whether they provided any comments. No further reports have been disclosed or included in the bundle.

The action was then stayed to enable negotiations to take place. On 1 December 2006 the Defendant’s solicitors offered terms of settlement only on the basis that the Claimant accepted the sum in court, in full and final satisfaction of her claim, and that she paid all her own and the Defendant’s costs from 21 days after the payment in. After further correspondence going to the issue of costs the action was eventually settled on these terms, a consent order to this effect being made on 26 June 2007, with the sum of £25,000 ordered to be paid out to the Claimant’s solicitors only after payment of the Defendant’s costs.

On 20 November 2007 the Defendant’s solicitors applied for the action to be transferred to the High Court and for permission to bring proceedings against the Claimant for contempt of court, in making false statements without an honest belief in their truth. Pursuant to the order of DDJ Brooks on 28 December 2007 the case was transferred to the High Court for a hearing to determine whether permission should be granted. Appropriate directions were given and that hearing took place before me on 5 June 2008.

Following the conclusion of counsels’ oral submissions, it was agreed that I should watch all the DVD recordings myself before determining whether to grant permission. I therefore reserved judgment in order to undertake that task. In addition to the DVDs already included in the trial bundle a further DVD, relating to recordings made in October 2006, was provided at the hearing. It was agreed that I should watch this recording too, without prejudice to the complaints as to incomplete disclosure by Dr Braslavsky QC, on behalf of the Claimant.

It is not in dispute that the road traffic accident which gave rise to this claim was a minor one. Nor is it in dispute that, as the report of Mr Getty of 8 December 2005 indicates (the Defendant’s orthopaedic expert), this Claimant had a pre-accident history of musculo-skeletal complaints.

Before the DVD recordings were disclosed in March 2006 the Claimant had been examined by a number of medico legal experts, namely orthopaedic/spinal consultants and consultant rheumatologists, to each of whom she had given a detailed history and description of her symptoms. In his report of 8 December 2005, Mr Getty could identify no physical cause for the Claimant’s symptoms, and he could not explain her marked disability “solely on the basis of a so called whiplash-type injury to her neck”. He indicated that he would revert to the rheumatological experts in this matter (see paras 20.11 – 20.14). Mr Ross (consultant spinal surgeon instructed on behalf of the Claimant) observed that it was difficult to understand why her symptoms were persistent; and that there were no physical findings to explain her presentation in orthopaedic terms. He advised that rheumatological opinion was necessary.

Dr McKenna concluded, in his report of 24 September 2004, that:

“Mrs Kirk currently appears to be significantly disabled. I feel that her perception of her disability is greater than her physical capability but this is a feature common to patients with fibromyalgia. However it is now more than three years since the road traffic accident and despite treatment she remains disabled without any significant improvement. Although she does not appear to have any previous significant psychological illness that would indicate a poor prognosis, persistent significant disability at this stage indicates a poor prognosis. In my opinion it is unlikely that she will be able to return to part-time employment within a five year period.

In summary Mrs Kirk is a 41 year old woman with a previous history of mechanical back pain who has developed fibromyalgia triggered by a road traffic accident on 14 September 2001. She has developed significant disability as a result of the fibromyalgia which has persisted and it is unlikely that she will be able to return to her previous employment within the medium term.”

Dr Bernstein, in his report of 2 November 2005, referred to Dr McKenna’s findings and then said as follows:

“My own examination just over a year later showed Mrs Kirk moving independently and now not exhibiting the tenderness of fibromyalgia. Indeed, Mrs Kirk described or claimed tenderness and four of the eighteen tests points but did not show the usual nonverbal signs of tenderness (wincing or withdrawal). I should add that I did not find muscle wasting as one might expect with a very inactive life.

In my view Mrs Kirk does not have fibromyalgia now, and the evidence of exaggeration gives concern whether she had fibromyalgia even in 2003-2004, when my colleagues eventually reached this diagnosis.”

He then concluded that:

“….Mrs Kirk's condition in 2002/3 after the road traffic accident of September 2001 can be seen largely as an exacerbation or exaggeration of her previous symptoms. If there was an exacerbation it arose too late to be attributable to the accident.

As I see Mrs Kirk now, exaggeration is the major and probably dominant feature. I believe Mrs Kirk's condition is now no worse than before the accident, and she has the same capacity for paid employment and household duties. Mrs Kirk has not developed a new illness of fibromyalgia.”

The Claimant made a number of statements about her injuries, symptoms and disabilities in documents which have been verified by statements of truth within the meaning of CPR Part 22. In addition to the Particulars of Claim, dated 23 September 2004, she made witness statements dated 10 April and 7 June 2006, and provided her Response to the Part 18 Request on 26 September 2006. Her schedule of damages bears a declaration of truth signed by her solicitors. It depicts a woman who is severely disabled, unable to work and in need of substantial care and assistance.

Her witness statement of 10 April 2006 was in fact a “home-made” statement, written originally by the Claimant on 20 July 2005, but which was then re-dated and confirmed as true, following a court order of 14 March 2006 that she serve a witness statement with a CPR-compliant statement of truth. In it the Claimant gave a very detailed description of a large number of symptoms due to fibromyalgia from which she said she had suffered following the accident, and the effects of them upon her daily life. These included, by way of example, “problems climbing stairs”, “balance problems”, “weakness - hands, wrists, arms, knees, ankles, shoulders, elbows”, “require elbow crutches and/or wheelchair”, “unable to drive manual car”, “difficulty driving automatic car at times (bad days)”, “unable to go shopping unaided”. She also stated that “walking around the house is sometimes not possible, but other days I can walk around the house at my slower pace. I have been provided with moulded grip elbow crutches and a wheelchair, which are used as required”. She refers to a progressive deterioration in her condition since the road traffic accident and makes general references to being unable to go to the cinema, or to restaurants, or to have dinner parties at home or with friends, to being unable to garden or to attend scout meetings, and says that she finds it difficult to look after her children.

Her witness statement dated 7 June 2006 refers mainly to her pre-accident condition and to treatments received and appointments attended by her since the accident. In paragraph 60 she said this:

“… towards the end of August 2005 I was struggling to maintain this positive attitude and started a slow decline in Autumn 2005 which lasted right through the winter. I have recently been seen by the Pain Consultant on 30 March 2006 and she was very supportive of how much I am struggling at the moment both physically and psychologically and will be sending me a follow up appointment.”

In her Response to the part 18 Request the Claimant confirmed the truth of those matters referred to in the schedule of damages and in her witness statements. Her Response also includes the following:

In detailed comments provided by the Claimant on 30 May 2006 on the DVD recordings she summarised her response by stating that:

“Overall the tapes show nothing of significance concerning my behaviour during the occasional short outing I have made during the 11 days of surveillance (2 weekend and 9 midweek days).”

She refers to there being “errors and omissions from the surveillance” and states that:

“Given that the surveillance team were unable to gain access to my house, they were unable to record the extent of the rest periods I require prior to and following activities.”

Mr Getty, who had seen the Claimant on 3 December 2005, was asked to comment on the surveillance footage. Having described in detail what he saw he provided the following comments in a report dated 6 February 2006:

“My comment looking at all this video surveillance is that one is looking here at a person who really one would not assume had any particular musculoskeletal problems. I fully accept that a video does not say if someone has got pain but the way she displays herself walking, driving and shopping, does not suggest there is any significant musculoskeletal pain causing significant disability that would be stopping her doing this.

……

I did not really see anything to suggest that she could not move her neck if she wanted to.

……

there was certainly no evidence in the videos that her neck movement was restricted.

……

I do not think moreover that one can explain the situation on a good dad/bad day situation, chronic pain does not work like that, nor can you explain it on the fact that she had taken so many pain killers she did not have any pain, again chronic pain does not work like that. By the very nature of this definition, it is chronic.

In short therefore, Mrs Kirk described to me a very severe level of disability and on the video sequences I have seen that is not borne out. I accept one has not seen her doing any physical activity but she certainly seems able to walk, shop and drive without any obvious problem.”

Dr Bernstein provided a further report dated 28 February 2006, which included the following statements:

“Whenever Mrs Kirk is seen she has normal posture, normal gait, normal pace, normal neck movements and normal use of the limbs without evidence of pain, fatigue or hesitation. The surveillance does not tell us whether Mrs Kirk is resting or busy at home.

I believe there is a contrast between the surveillance and Mrs Kirk's account that she only goes to small shops with her daughter or mother, that she struggles to drive the Toyota Carina because of sciatica down her left leg, and that her walking is slow and interrupted by the need to rest. 1 also feel there is a contrast with Mrs Kirk's statement about her symptoms and disabilities.

Judging by the surveillance there would have been no need for Mrs Kirk to ask her husband to move the chair for her to sit down nor for Mr Kirk to have offered to bring the car to the door. There is no indication here of the need for the elbow crutches noted by Dr McKenna in September 2004, nor of the restricted neck movements noted by Dr McKenna some six months before the first videotape recording.

The question is whether Mrs Kirk is coping well for relatively short periods by resting for long periods or simply lying low. My own view is that a social explanation is readily understandable, whereas it would be difficult to understand on physical or psychological grounds how a person could appear so fit and well for short and moderate periods if exhausted and physically inactive the rest of the time.”

In a further report, dated 4 April 2006, Dr Bernstein commented on an application by the Claimant to the County Council for a parking badge, dated 22 September 1999, which was issued but then not renewed as from January 2006. He referred to the Claimant’s claim that she was substantially disabled in her ability to work some two years before the accident, and described her behaviour in 1999, and again in relation to her present claim, as being in his opinion “deliberately exaggerated”. He expressed further concerns in letters dated 4 April and 31 May 2006.

As I have already indicated no further reports or comments on the video surveillance from those medical experts instructed on behalf of the Claimant have been served.

CPR 32.14 provides as follow:

In Malgar Ltd v. R E Leach (Engineering) Ltd, a decision of the Vice-Chancellor in the Chancery Division, dated 1 November 1999 (1999 WL 1048312), the Vice-Chancellor, faced with a similar application, and the first of its kind to have been made since the Civil Procedure Rules came into force, made some general observations about the effect of CPR 32.14.

In general the Rule does not introduce a new category of contempt, but provides, rather, for the possibility of a person being prosecuted for contempt if he or she makes or causes to be made a false statement, without an honest belief in its truth, in a document which is verified by a statement of truth. In order to succeed in such an application an applicant who prosecutes, and who has the burden of proving contempt to the criminal standard, must show at the substantive hearing that the individual knew that what she was saying was false and that her false statement was likely to interfere with the course of justice.

At page 2 of his judgment the Vice-Chancellor observed as follows:

“Proceedings for contempt are not private law proceedings. They are public law proceedings. They may in appropriate circumstances be brought by private individuals. They can always be brought by the Attorney General, but private individuals may be able to bring them. An injunction granted in an action between two private individuals restraining one from doing some act which is to the prejudice of the interests of the other can be enforced by committal proceedings brought by the party for whose benefit the injunction was granted. Committal proceedings of that character can be brought without permission. But under CPR 32.14 a private individual can only bring committal proceedings with the permission of the court. The reason for that is the nature of the proceedings. These are not proceedings where the alleged contempt consists of the breach of an order obtained by an individual in protection or furtherance of his own private rights. It is a case of an allegation of public wrong, not private wrong. Interference with the course of justice is plainly a public wrong and it is right therefore that there should be a public control over the launching of proceedings for this species of contempt. The Attorney General has a public function which needs no further explanation. The court from which permission is sought will be concerned to see that the case is one in which the public interest requires the committal proceedings to be brought. I repeat that these are not proceedings brought for the furtherance of private interests. They are brought in the public interest and are in some respects like criminal proceedings. Nonetheless they are civil proceedings and they are civil proceedings to which the overriding objective set out in CPR 1 is therefore applicable. The overriding objective enjoins the court to deal with cases justly, ensuring so far as practicable that the parties are on an equal footing, that expense is saved and that the case is dealt with in ways which are proportionate to the money involved, to the importance of the case, the complexity of the issues and the financial position of each party. These are general imperatives which are as relevant, in my opinion, to an application for permission under CPR 32.14 as to any other form of civil proceedings.”

In Sony Computer Entertainment and Others v. Ball and Others, a decision in the Chancery Division on 17 May 2004, [2004] EWHC 1192 (Ch), Pumfrey J, applying Malgar, said as follows in relation to the test at permission stage:

“16.

It seems to me, in the light of the judgment in Malgar v. Leach, that the discretion to permit applications of this nature to proceed must be exercised with very great caution. It can hardly be appropriate, it seems to me, to permit a general investigation of the facts surrounding a particular infringement in the context of contempt proceedings. That is why I have excluded from the permission which I have granted the greater number of the non-disclosures and misrepresentations alleged by the claimants.

17.

It seems to me also that before this discretion is exercised, the claimant must satisfy the court that there is a strong case - and preferably an admitted case - that a particular misrepresentation is untrue.”

In paragraph 18 he used the words “strong prima facie case”, and at paragraph 22 said that “the court must be astute not to allow tenuous or argumentative applications to commit to go forward.”

I approach the present case, therefore, on the basis that the discretion to grant permission should be exercised with great caution; that there must be a strong prima facie case shown against the Claimant, but that I should be careful not to stray at this stage into the merits of the case; that I should consider whether the public interest requires the committal proceedings to be brought; and that such proceedings must be proportionate and in accordance with the overriding objective.

Dr Braslavsky QC, for the Claimant, submits that proceedings for contempt are inappropriate after an action has been settled by consent and upon such terms as agreed in this case. The issues now raised could and should have been investigated in the substantive proceedings. The Claimant provided a detailed response and explanation for the contents of the DVD footage, which is inconsistent with a fraudulent claim. Following her response the Defendant’s insurers entered into negotiations and eventually settled the claim, after taking a view about it.

This, therefore, is not an admitted case and the Claimant should have had the opportunity to have her response tested in the substantive proceedings. She should not now have to face committal proceedings in satellite litigation, which comes close to an abuse of the process and should, as such, be weighed in the balance in relation to the exercise of discretion.

Further, he submits that there was in this case incomplete disclosure of the DVD recordings by the insurers. The most recent recordings, for various days in 2007, were disclosed late, and the DVD relating to October 2006 was only disclosed at the hearing before me on 5 June, so that the Claimant has not had any opportunity to comment upon their contents. These are Draconian proceedings and the Court should not grant permission where the Applicant has failed to disclose all the material upon which reliance is placed, and where the integrity of application is therefore compromised. Dr Braslavsky also contends that there has been unreasonable delay in applying for permission in any event, in a case where there was no pleaded allegation of fraud and when the Defendant did not apply to withdraw the money in court.

I have considered these submissions carefully, but I do not accept them. Having considered the documents in the trial bundle, including in particular those passages referred to above, and having seen for myself the contents of the DVD recordings, in my view and without venturing further into the merits at this stage, the contrast between the Claimant’s verified statements, persisted in over a prolonged period of time, and what is shown on the DVD footage, taken together with the comments of the Defendant’s medical experts, is such as to raise a strong prima facie case against this Claimant; and the Defendant’s allegations cannot be regarded as either tenuous or argumentative. The DVDs are of sufficient length and are sufficiently contemporaneous, representative, and consistent to merit a full investigation of the matter.

Further, the context for this application is a particularised schedule of damages in which, before disclosure of the DVD recordings, this Claimant was seeking to recover over £800,000 in damages from the Defendant’s insurers. The allegations are, in my view, sufficiently serious as to merit such proceedings being brought in the public interest and, having regard to the overriding objective, are proportionate in the circumstances. There is, in my judgment, a strong public interest in personal injury claimants pursuing honest claims before the courts.

I accept that there are a number of days of inactivity on the recordings, when the Claimant is not seen; and I recognise that the Claimant has provided a detailed explanation of her movements shown on the recordings. I take into account also that fibromyalgia is a controversial and non-specific diagnosis, with a spectrum of symptoms which may be variable, resulting in a sufferer having good days and bad days. All these matters seem to me to go to the merits of the Claimant’s defence to the allegations and will merit careful consideration at the hearing. However, on the material presently before me there is a strong case, which requires an answer from the Claimant in contempt proceedings.

I agree with Mr Featherby QC, for the Defendant, that the mere fact that the action was settled, on the terms agreed between these parties, does not extinguish any contempt. If it were otherwise litigants would have to keep open the substantive litigation, thereby occupying court time and resources, and incur further costs of both preparatory work and of trial, which would be wholly disproportionate and, as it seems to me, contrary to the interests of justice.

Further, the Defendant and her insurers would have risked criticism, if they had either threatened or instigated proceedings against the Claimant for contempt during negotiations and before the substantive claim had been brought to a conclusion. Even if such proceedings had been instigated during the currency of the claim, the Claimant could, and presumably would, still have settled it on the terms offered, as occurred; or she could have discontinued the claim. In either case the contempt proceedings would remain extant and require determination. I reject entirely the suggestion that this is satellite litigation amounting to an abuse of the Courts’ process.

In any event the Defendant has never suggested that this Claimant had not suffered some symptoms of pain and disability, following a minor rear shunt collision and whiplash type injury. As it seems to me the Defendant’s insurers were entitled to view the money in court, as Mr Featherby expressed it, as “milk already spilled” and to seek to bring the proceedings to a cost-effective conclusion on agreed terms. It is not suggested that they are thereby estopped from bringing this application for permission. The sum in court would in any event have been used up entirely as a result of the order for costs.

In relation to incomplete disclosure, Mr Featherby accepts that the 2007 footage could have been disclosed earlier than it was, but submits that both this footage and the October 2006 footage adds nothing of substance to the material disclosed in full in March 2006. I agree. Whilst the Court will obviously be concerned to ensure that all the relevant material has been provided, both to the Court and to the Claimant before the hearing of the application for permission, I am satisfied after hearing from Mr Featherby, that disclosure is now complete. Dr Braslavsky did not suggest otherwise and sought no adjournment to enable the Claimant to consider and comment upon the footage relating to October 2006 and 2007.

In any event this “new” footage contains nothing which would affect the view I have formed on all the footage disclosed in March 2006. The extent to which it might assist the Claimant’s explanations for the footage, and for her decision ultimately to settle the claim, is obviously a matter which is relevant to her defence to the allegations, but it does not affect my assessment of the material drawn to the Court’s attention for the purposes of this application.

The 2007 footage was obtained after settlement of the claim in July 2007, and in anticipation of a possible claim that the earlier recordings were not representative of the Claimant’s true condition. I do not consider that there was any unreasonable delay in making this application in the circumstances and certainly no delay which has prejudiced the Claimant.

For all these reasons I grant the Defendant’s application and will now ask counsel for both parties to endeavour to agree appropriate directions for the hearing which must follow, or to make submissions upon them to me at the hearing now to take place on the date this judgment is handed down.