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:

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

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:

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:

The Claimant was referred to the Incapacity for Work Questionnaire, completed by her and signed on 9 September 2004, in which the following passages appear:

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

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:

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

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:

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:

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.