Walton v Kirk

INTRODUCTION

This is an unusual and difficult case, in which the applicant’s insurers seek to commit the respondent, Mrs Joanne Kirk, for contempt of court. By proceedings in the Stockport County Court, commenced on 10^th August 2004, Mrs Kirk had sought damages against the applicant arising out of a road traffic accident on 14^th September 2001. The damages claimed were in excess of £750,000. During the course of those proceedings, Mrs Kirk verified a series of documents by signing statements of truth. These documents painted a detailed picture of Mrs Kirk as having suffered significant and long-term disability as a result of the accident.

It is clear that the applicant’s insurers believed that Mrs Kirk was exaggerating both her disability and her consequential claim for damages. On 16^th February 2005, the applicant’s insurers paid £25,000 into court. They then engaged a surveillance company to undertake secret filming of Mrs Kirk driving, walking and shopping. It is their case that these videos demonstrate a huge gulf between Mrs Kirk’s verified statements and the reality of her condition. These surveillance videos, up to and including 7^th December 2005, were disclosed to Mrs Kirk and her solicitors on 24^th March 2006. Later that year Mrs Kirk’s solicitors indicated to the applicant’s insurers that they would accept the £25,000 paid into court. There was no attempt to recover a higher figure. Ultimately, it was agreed that Mrs Kirk would pay the insurers’ costs from 21 days after the payment into court, until the date it was accepted. That costs figure was eventually agreed at £21,000. Accordingly, to all intents and purposes, Mrs Kirk recovered nothing from the litigation. It is the insurers’ case that she was obliged to settle on such disastrous terms because of the contents of the videos.

The County Court action had been substantially settled by early 2007, although the agreed order was not concluded until June of that year. Thereafter, on 20^th November 2007, after two further videos of Mrs Kirk had been obtained, the applicant issued an application for committal for contempt of court. On 24^th July 2008, following a hearing the previous month in which both sides were represented by leading counsel, Cox J granted the applicant permission to bring these contempt proceedings. Following various interlocutory steps, there was a three day trial of the committal application before me at the Liverpool Civil Justice Centre from 23^rd to 25^th March 2009. This Judgment sets out my analysis and conclusions on the issues raised.

I set out in Section 2 the applicable principles of law. At Section 3 I deal as briefly as possible with the chronology, principally by reference to some of the relevant documents. At Section 4, I deal with issues of credibility and make a number of findings of fact. At Section 5, I set out some general observations on the particulars of contempt relied on by the applicant and thereafter, at Section 6 I set out my analysis and conclusions in relation to those particulars. There is a short summary of my conclusions in Section 7 below. I am very grateful to counsel for the efficiency and economy with which the trial was conducted.

THE APPLICABLE PRINCIPLES OF LAW

Jurisdiction

At the outset of the trial, I raised with the parties my concern as to jurisdiction. This concern arose out of the somewhat convoluted terms of RSC 52.1 which, on one reading, appeared to suggest that, whilst a High Court Judge had the power to consider committal proceedings arising out of contempt in the face of the County Court, only the Divisional Court could deal with a committal if the contempt arose otherwise in connection with those proceedings. Given that, pursuant to RSC 52.1 (3), a High Court Judge has the jurisdiction to deal with a contempt of court of any description arising in the High Court, this distinction, if that is what it was, seemed anomalous.

When I raised the matter, both counsel submitted that I did have the necessary jurisdiction, and they both disavowed any intention to take a jurisdiction point. On the contrary, they both indicated that their respective clients wanted me to try the case. They pointed to the fact that Silber J had dealt with a very similar case in Swansea just over two years ago (Caerphilly County Borough Council v Matthew Hughes and others, 1^st December 2006, unreported). They also made the point that the issue of jurisdiction had been considered by Cox J in the present case in June/July 2008, when she concluded that she had the necessary jurisdiction to grant permission for the claim to be brought before and tried by a High Court Judge.

Both Silber and Cox JJ referred to and relied upon CPR 32.14 which provides as follows:

“(1)

Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified in a statement of truth without an honest belief in its truth.

(Part 22 makes provision for a statement of truth)

(2)

Proceedings under this rule may be brought only-

a)

By the Attorney General; or

b)

With the permission of the court.”

In the light of the cases referred to above, I have concluded that, despite the opaque nature of RSC 52.1, CPR 32.14 does provide a High Court Judge with the necessary jurisdiction to deal with a committal for contempt of court arising out of documents verified in the County Court by way of a statement of truth. I consider that this conclusion is strengthened by reference to Malgar Limited v Re Leach Engineering Limited (1^st November 1999, unreported), a decision of the Vice-Chancellor in the Chancery Division, and the decision of Pumfrey J granting permission for a committal application in Sony Computer Entertainment and Others v Ball and Others [2004] EWHC 1192 (Ch).

The Relevant Test

CPR 32.14 allows for the possibility of a person being prosecuted for contempt if he or she makes or causes to be made a false statement, in a document which is verified by a statement of truth, in circumstances when the maker does not have an honest belief in its truth. In order to succeed in such an application, an applicant who prosecutes has the burden of proving contempt to the criminal standard. In Caerphilly County Borough Council, Silber J accepted at paragraph 14 of his Judgment that, in order to establish each attempt alleged, the applicant must prove beyond reasonable doubt, in respect of each statement:

In that case, the first respondent had made a personal injury claim alleging that he had tripped and fallen on a defective area of pavement for which the applicant was responsible. Shortly before the trial, evidence came to light which showed that the first respondent had actually injured himself whilst playing football on the very date and at the approximate time that he claimed that he had suffered his fall. The trial was adjourned and the first respondent attempted to discontinue his action. However, the contempt proceedings went ahead and Silber J concluded that the first respondent, together with his friends who had provided false statements supporting his claim, were guilty of contempt of court. The committal application succeeded and the first respondent was sent to prison.

Finally, in relation to the relevant test under CPR 32.14, I note that the Sony case identified above was the subject of a full hearing before Blackburn J, reported at [2004] EWHC 1984 (Ch). By the time of the committal hearing itself, the relevant respondent had admitted making false statements and that he knew that at least one of them was false when it was made. The judge found that another false statement was made at a time when the respondent knew it to be false. That left the issue as to whether there was a likelihood of an interference with the course of justice if the false statements had been persisted in. Blackburn J concluded that this test had been satisfied and that the relevant respondent “was seeking to influence the course of events in the litigation - and thus the course of justice - in reliance upon, among others, statements which, although verified by statements of truth, he knew to be untrue.”

Surveillance in PI Claims

In recent years, it has regrettably become more common for defendants (and their insurers) in personal injury litigation to subject the claimant to secret surveillance, so as to verify for themselves the honesty of the claims put forward. As Mr Cowan correctly pointed out, there have been a number of cases in which a discrepancy between a claimed condition, and that which is capable of being seen on a secret surveillance video, has not, of itself, been regarded as a contempt of court. Thus, by way of example, in Rogers v Little Haven Day Nursery Limited (30^th July 1999, unreported), a decision of Bell J, the claimant had said that her injury sustained at work was such that her right wrist was completely useless. The video showed the claimant using her right hand to carry boxes, hold papers, pen, mugs and a cigarette. The judge found that the video showed that she could use her right hand and that she did so without any sign of pain. Having considered all of the evidence, Bell J concluded that the claimant had exaggerated her condition but that:

“… the exaggeration which I have described falls within the bounds of familiar and understandable attempts to make sure that doctors and lawyers do not underestimate a genuine condition, rather than indicating an outright attempt to mislead in order to increase the value of her claim beyond its true worth.”

In Ford v GKR Construction (22^nd October 1999, unreported) the principal matter with which the Court of Appeal was concerned related to the judge’s order that the defendant should pay the claimant’s costs. One matter dealt with in the judgment of Judge LJ (as he then was) concerned the secret videos of the claimant which suggested that she was exaggerating her symptoms. The judge at first instance had said:

“I do not think that the plaintiff was deliberately lying. I think there is a failure on her part to recognise that there are times when she can do much more than she does, and in fact to recognise that on occasions she does do more for herself. I think there is force in the submission that once the plaintiff was regarded as limited in her capabilities, it was easy for her to regard that as the norm, whereas in fact it may reflect the situation when she is at her worst. It is the nature of the illness that it fluctuates.”

It appears from the transcript that the Court of Appeal took the same view, and no criticism was made of this aspect of the claimant’s evidence.

Accordingly, it seems to me that discrepancies between a statement verified by a statement of truth, on the one hand, and video evidence on the other, will not automatically give rise to a contempt of court. Ultimately, it is a matter of fact and degree. Some exaggeration may be natural, even understandable, for the reasons set out by Bell J in Rogers. On the other hand, gross exaggeration and dishonesty will not be tolerated. As Cox J said in her Judgment giving permission to bring the present case, it is in the public interest that personal injury claimants pursue honest claims before the courts and do not significantly exaggerate those claims for financial gain.

Summary

In the light of the authorities noted above, I summarise the relevant principles as follows:

CHRONOLOGY

Approach

I set out below a chronology of the relevant events identifying, where important, some of the contemporaneous material. In order to keep this Judgment to a manageable length, this process has inevitably been selective, but I have read through carefully all of the documents in Bundles A, B and C and watched the relevant videos on two separate occasions after the conclusion of the trial.

Mrs Kirk’s Condition Prior To Her Accident

The evidence demonstrates that, until the mid or late 1990s, Mrs Kirk lived an active life, with a lengthy list of regular activities, including playing squash and badminton, going fell-walking and cycling, and undertaking all the gardening and numerous other household tasks.

In 1998, Mrs Kirk suffered from lower back pain and had 4 ½ months off work. It is clear that the onset of this condition radically curtailed her previously active lifestyle. She obtained a disabled parking badge from Lancashire County Council and she took a variety of prescribed tablets. In her cross-examination, Mrs Kirk told me that:

“I could no longer go fell-walking or do a lot of the outdoor activities that I used to do. I could not do any heavy domestic chores. Other than light propagating I could not do any more gardening. I had to adjust to a limited lifestyle.”

This was confirmed by Mrs Evans, who said that it would be inaccurate to describe Mrs Kirk as ‘hale and hearty’ before the accident.

Although it is a matter to which I return in Section 4.3 below, I should note at this stage that this was most certainly not the impression that was created by any of the original documents prepared for the County Court proceedings, specifically Mrs Kirk’s lengthy first statement, dated 20^th July 2005, and re-signed on 10^th April 2006. That statement, together with statements produced by her husband and brother on her behalf, all represented that her pre-accident lifestyle was not limited in the way now admitted. Instead these statements said in terms that, following her time off work, Mrs Kirk had returned to her usual activities, and that what had caused the drastic limits on her lifestyle was the road traffic accident in 2001. This was, in my judgment, a serious matter, and I return to it (and its relevance to this trial) below.

The Accident And Its Immediate Consequences

On 14^th September 2001, the applicant drove into the rear of Mrs Kirk’s car. Mrs Kirk suffered what is often described as a ‘rear shunt injury’, particularly neck pain radiating into her shoulders. All the evidence suggests that it was, as Cox J observed, “a minor road traffic accident”.

The immediate consequences of the accident appeared slight. Mrs Kirk did not go and seek medical attention for some 8 days. She worked for at least some of that period. After treatment, she went back to work at the University and, some months later, she accepted promotion. Her medical notes indicate that she subsequently considered that her condition had improved.

October 2002-2003

Mrs Kirk’s condition apparently deteriorated in the middle of 2002. She ceased working at the University of Central Lancashire on 7^th October 2002 and she has never returned to work. She complained of extreme muscle spasms, chronic pain and exhaustion. In court, Mrs Kirk described the period of the next two years as her “dark days”, when she was at her lowest.

On 20^th February 2003, Mrs Kirk completed a claim for Disability Living Allowance, the actual writing being done by Mr Kirk. The claim form contained a declaration that the information that she had given was correct and complete, and she acknowledged in cross-examination that she understood the warning that “to knowingly give false information may result in prosecution”. The form described somebody who was barely able to function in a normal way. For example, Mrs Kirk said that she could only walk a maximum of five metres before she needed to stop and rest and that it took her five minutes to walk five metres. She said that she had this amount of difficulty walking ‘seven days a week’. She described herself as being unable to carry out even the simplest tasks without help, such as washing her hair and cleaning her teeth.

It should be noted that the claim form expressly asked for a description of how the condition varied. In subsequent evidence on her behalf, much has been made of the variable nature of Mrs Kirk’s condition, and how she has ‘good days and bad days’. However, in her answers to this questionnaire, there was no indication of any ‘good days/bad days’ variation: it is not unfair to say that the answers to the claim form paint an unremittingly bleak picture of Mrs Kirk’s physical condition.

In June and then again in November 2003, two different treating doctors suggested that Mrs Kirk may have fibromyalgia. As Cox J put in paragraph 35 of her judgment giving permission for these proceedings, “fibromyalgia is a controversial and non-specific diagnosis, with a spectrum of symptoms, which may be variable, resulting in the sufferer having good days and bad days.” It is controversial because its diagnosis depends almost entirely upon the sufferer’s descriptions of their own pain and disability, which cannot easily be verified by objective signs of lesion or medical examination. I should also note in this context that Dr Johnson, Mrs Kirk’s pain consultant who gave evidence before me, concluded that Mrs Kirk had a chronic pain problem prior to the accident, and that the accident may only have had a minor impact on the overall progression of her condition. He too said that it seemed that Mrs Kirk’s condition was at its worst in 2003/2004.

In the summer of 2003, Mrs Kirk went on two holidays. There was a two week holiday to Spain. It does not appear, on that holiday, that Mrs Kirk took a wheelchair or crutches, although in the claim form referred to above she refers to both . However, on her second holiday, to Edinburgh, it appears that she used a wheelchair for almost the entirety of the trip.

The Incapacity For Work Questionnaire (2004)

In 2004, there was little evidence of any change to Mrs Kirk’s condition. On 9^th September 2004, Mrs Kirk completed an Incapacity for Work questionnaire. Again, the answers were written out by Mr Kirk; again, they paint an unremitting picture of Mrs Kirk’s disability:

“Chronic fatigue, exhaustion, chronic pain, stiffness, swollen and inflamed joints, non-restorative sleep and sleep deprivation, irritable bowel, alternating diarrhoea and constipation, frequent and severe headaches, muscle weakness, dizziness, numbness, tingling and pins and needles, ear aches, tinnitus, middle ear dysfunction awaiting newly prescribed hearing aids, balance problems, hand grip weak problem with writing due to thumb inflammation. Severe sweating at night and periods throughout the day.”

The questions expressly asked for ‘differences in the way you feel from day-to-day’. Mrs Kirk’s answers almost invariably ignore that request, even when, in specific questions about particular conditions and symptoms, the questionnaire asked expressly: ‘Also tell us if it varies from day-to-day’.

In her answers to questions about sitting in and getting up from a chair, Mrs Kirk said that she could not sit comfortably for more than 10 minutes without having to move from the chair and could not get from sitting to standing without holding onto something. Considerable detail is given of the strain and pain that Mrs Kirk said she suffered from sitting in a chair, getting up from the chair, bending or kneeling. The same or similar symptoms are identified by reference to standing and walking. For example, by reference to standing and walking, Mrs Kirk said:

“Standing in one position without having to move severely increases pain in ankles, knees, pelvis, hips, lower back, neck, shoulders, elbows and hands due to elbow crutches required. The effort causes chronic fatigue and the effort can cause sweating, muscle spasms. I need to lie down to reduce the pain, muscle spasms and recover from the exhaustion.

I use walking sticks around the house when needed and two moulded handled elbow crutches when going out. Walking is very slow and increases pain levels considerably as detailed in “standing section” above but the extra effort of walking with crutches results in a longer period of rest being required to recover and reduce pain, muscle spasms, sweats and chronic exhaustion.”

In the section about the use of her hands and arms, Mrs Kirk said that she could not use a pen or pencil and she could not raise either arm to her head as if to put on a hat. She said she could not pick up a paperback book with either one of her hands. Considerable detail is given as to the pain and difficulty suffered in carrying out these tasks. Mrs Kirk indicated that every movement of her arms is painful.

There is then a part of the questionnaire dealing with speaking. Mrs Kirk said that “sometimes my family or friends cannot understand what I say”. In expanding on that she said:

“I have memory loss and say words which I did not mean to say but am unaware that I have said the incorrect word or phrase. This causes confusion for me and who I am speaking to because I cannot understand why they cannot understand me.”

In the concluding part of the questionnaire, Mrs Kirk responds to a request about how her disability affects her ‘normal daily living’ by responding:

“I do not have ‘normal daily living’. Each hour of each day is different. My sleep disturbance and deprivation together with chronic pain from head to toe, limb stiffness, and joint swelling, sweats, memory impairment and loss of concentration, numbness, tingling and pins and needles, loss of hearing, multiple tender points over body and chronic exhaustion all result in my quality of life is so low I sometimes feel like I cannot endure any more.”

Mrs Kirk confirmed in her evidence that she understood the declaration that she signed to the effect that, if she gave information that was incorrect or incomplete, “action may be taken against me”. She also declared that the information she had given in her answers to the questionnaire was “ correct and complete”.

The Early Stages Of The Litigation

Mrs Kirk commenced her County Court claim against the applicant on 10^th August 2004. Particulars of claim were served on 23^rd September 2004. The particulars of claim blamed Mrs Kirk’s condition on the road traffic accident. There was no mention there of her pre-existing back problems.

On 19^th December 2004, Mrs Kirk completed the preparation of a schedule of expenses for attachment to the schedule of damages. The schedule of damages was served in January 2005. The claim for pecuniary losses was for £772,756.84, plus general damages for pain, suffering, and loss of amenity. There was also a claim for interest. Thus it was clear that this was a substantial personal injury claim, advanced on the premise that Mrs Kirk’s desperate physical condition (as described in the two forms referred to above) had been brought about by the road traffic accident.

The Medico-Legal Evidence in the Proceedings

During the course of the personal injury litigation, Mrs Kirk was seen by a variety of experts. It is unnecessary to identify all their reports in this chronology. However, I note that one of her experts, Dr Jones, said as early as 9^th May 2003 that it was ‘certainly possible that Mrs Kirk’s current symptoms were due to her pre-existing psoriatic arthropathy rather than the accident that she describes’. Her orthopaedic surgeon, Mr Ross, said much later, on 30^th August 2005:

“On examination, there were no physical findings which would explain her presentation in orthopaedic terms. I can only suggest that the underlying problem here be addressed by either a pain specialist or a rheumatologist…. In summary, as far as her low back is concerned, I think a soft tissue injury lasting perhaps 8-12 weeks was all one could expect as the direct result of the accident in September 2001. I would not have expected this to have resulted in either long-term disability or indeed retirement on health grounds and clearly there must have been other issues involved for her back problem to have reached that state”.

Dr McKenna, Mrs Kirk’s expert rheumatologist produced a report dated 29^th September 2004, just after the County Court proceedings started. He concluded:

“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 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 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.”

Dr McKenna concluded his report by saying that Mrs Kirk had developed fibromyalgia “triggered by a road accident on 14^th September 2001”.

On behalf of the applicant in the original proceedings, Mrs Kirk was seen by Mr Getty, an orthopaedic surgeon, and Dr Bernstein, a rheumatologist. They produced a series of reports in 2005 and 2006. Mr Getty recorded in his report of 8^th December 2005 that he could not explain “her marked disability solely on the basis of a so called whiplash-type injury to her neck.” He referred to fibromyalgia as a condition that “I always find a difficult diagnosis to make”. In his report of 2^nd November 2005, despite Mrs Kirk’s description of her condition, Dr Bernstein had no hesitation in concluding that her condition in 2002/3 after the road traffic accident of 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 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 First Set Of Videos

In the first part of 2005, Mrs Kirk attended two pain management programmes. She told me that these had helped her find ways of coping with the pain that she suffered, although she indicated that the programmes had not reduced the pain itself. Nowhere in any of her statements produced for the County Court litigation did Mrs Kirk ever suggest that there was an improvement in her condition or symptoms in the first part of 2005; indeed, the statements painted the opposite picture, that her condition continued to deteriorate into 2006 and beyond.

In March 2005, Mrs Kirk was the subject of the first set of secret surveillance videos. The videos for Saturday 5^th March and Sunday 6^th March are irrelevant because they do not show Mrs Kirk. The video for Wednesday 9^th March 2005 is relevant because Mrs Kirk can be seen driving to collect her daughter from school, and sitting in her car waiting for her to come out. Thereafter, they go to the supermarket together. Mrs Kirk is seen getting out of her car and shopping in the supermarket. She is seen walking, and sometimes pushing the trolley. At one point in the shop she can be seen stretching upwards to a shelf and at another time leaning into a frozen food cabinet. There is nothing on the video to indicate that Mrs Kirk was suffering from a severe disability.

There was a further video on Thursday 10^th March 2005 but, although Mrs Kirk’s car is seen, she is not, and there is nothing to say that she was driving the car. The video is therefore irrelevant.

Mrs Kirk’s First Statement (20.7.05/10.4.06)

I regard Mrs Kirk’s first statement, produced for the purposes of the personal injury litigation, as an important document in the contempt proceedings. There are a number of reasons for this. First, it was produced by Mrs Kirk at home on her home computer. I am in no doubt at all that it contains entirely her own words. Secondly, the statement is the most contemporaneous to the period immediately after the accident and therefore the closest in time to her “dark days”. Mrs Kirk said that the bulk of it had been completed by the end of 2004, although some matters were added to it to cover the first part of 2005. It was signed on 20^th July 2005. However, it was subject to a curious caveat that the facts were true “not withstanding any problems with my memory, which have resulted from this accident”. The court took the view that such a caveat did not comply with the CPR, and a proper statement of truth in conventional form was added by order of the court, and signed by Mrs Kirk on 10^th April 2006. No changes were made to the statement itself.

Although the statement refers to the lower back pain of 1998, it does not suggest that that event had any effect on Mrs Kirk’s pre-accident condition. On the contrary, she said: “I would say that on the whole since returning to work in October 1998 my general health pre-accident was very stable… prior to this accident I have had no symptoms that would be connected with fibromyalgia. I was very well prior to this RTA.” The statement seeks to identify the numerous limits on Mrs Kirk’s lifestyle following the accident. For example she said:

“Since the accident I have been unable to sew any curtains as I cannot sit at the machine and handle the weight of the fabric-let alone cut out. This is a great loss to me as I miss this creative aspect of my life greatly. I also used to play squash, badminton, yoga, step-aerobics, fell-walking, cycling, swimming, weekly Tai Chi…. I have always been a keen gardener and in 1999 when we moved to our current house we have a large greenhouse and vegetable garden where I grow from seed all hanging basket plants, potatoes, tomatoes… we moved to our present address in 1999 and had to refurbish the whole house doing all the internal demolition and installation and decoration ourselves with the exception of central heating system.”

This was all in the section entitled ‘Life Pre-Accident’ and was designed to impress the reader with a comparison between the wide-ranging and varied activities that Mrs Kirk enjoyed before the accident, and the desperately limited lifestyle imposed thereafter. There was no mention whatsoever of the fact that many of the matters noted here (such as fell-walking, squash and gardening) were activities which Mrs Kirk was no longer able to enjoy before the road traffic accident, because of her pre-existing back problems.

As was noted in cross-examination, this failure arose again in the financial claim, set out in Mrs Kirk’s first statement, for the loss due to her inability to do domestic chores. For example, the relevant table claimed that Mrs Kirk, before the accident, did 100% of the gardening, whereas now she was only able to do 15%. There was a claim for 255 minutes lost per week in consequence. Mr Kirk, when asked about this in cross-examination, frankly accepted that he could not reconcile such a claim with the evidence that, before the accident, as a result of her lower back pain, Mrs Kirk was simply unable to do anything other than the lightest of gardening tasks.

The first statement also sets out, under the heading ‘Severity of Injury’, a list of Mrs Kirk’s symptoms. These number no less than 66 separate symptoms which she said that she would find impossible to grade in order. The only indication that she did not suffer from these 66 symptoms all the time was the statement that not every single symptom was evident every day “as fibromyalgia is a constantly changing condition for hour-to-hour let alone-day-to-day”. The only other concession to the potential variability of her condition is that just two of the stated symptoms - “bedridden due to pain and chronic exhaustion” and “difficulty driving automatic car at times” - are said only to occur on “bad days”. These points aside, the statement, like the answers to the forms/questionnaires noted above, paint an unremittingly miserable picture of Mrs Kirk’s physical condition.

The Second Set Of Videos

The second set of videos covers dates in September, October, November and December 2005. The first is dated 29^th September 2005 and is the most comprehensive to date. Mrs Kirk is seen driving and going to the physiotherapist. At the physiotherapist she walks to the car following her appointment and then goes shopping in the village of Longridge. She parks the car, crosses the road and uses the cash-point. She goes window-shopping, including standing for a long period outside a jewellery shop window. She is standing upright and is unsupported. She then walks round the town. At one point she is seen taking her foot of a low wall; according to Mrs Kirk’s oral evidence, she had put her foot up onto the wall to tie her shoelaces. She then carries on shopping buying plants for sale and walking between the traffic to cross the road.

There is nothing in any part of this lengthy video to suggest that Mrs Kirk is suffering from any disability whatsoever. Tellingly, when she gets into the car, she reaches back for her seatbelt, a manoeuvre which might be thought to be impossible with the range of disabilities described by Mrs Kirk in the documents referred to above. Yet she shows no obvious signs of discomfort whatsoever. She then drives down a dual carriageway and goes to a petrol station. She stands filling the car. She uses both hands for the pump. She is not supported by anything else.

Although there are videos of the 5^th and 11^th October 2005, Mrs Kirk cannot be seen on either of them and I consider that they are therefore irrelevant. Furthermore, although she is seen on the video of 23^rd November driving to collect her daughter from school and waving to her, I am unconvinced that this video adds anything further. Similarly, Mrs Kirk is not seen on the video of 24^th November, or the video of 5^th December 2005. I therefore consider that those videos too are irrelevant to the contempt committal.

The video of 7^th December 2005 is, however, much more important. This video shows Mrs Kirk driving her mother and her daughter to Preston on a shopping trip. She does the driving. She walks around the town with her mother and daughter. She is seen in the bank and in the building society. She leans against the counter in the building society but it is not possible to say whether this was for support reasons or not. Her walking around the streets appears to be entirely normal. Furthermore, Mrs Kirk is seen in both WH Smiths and BHS. In both shops, she is standing looking at the displays, examining the merchandise etc. Indeed, in BHS, where she was apparently waiting for her mother, Mrs Kirk can be seen standing for about 5 minutes. Although she said in evidence that she was leaning against the counter, that is not discernable from the video. Thereafter, Mrs Kirk is again seen walking in the town with her mother and daughter, although it is right to say she is not seen carrying any of the shopping bags. She drives back home again about an hour and quarter later.

In my judgment, there is nothing in any part of this lengthy video which suggests that Mrs Kirk was suffering from a severe disability. Her walking pace seems normal and her ability to stand unsupported seems entirely ordinary. There is nothing in her pace of walking, gait or posture to indicate any physical difficulties or the suffering of any significant pain.

I consider that my conclusion has already been confirmed by Dr McKenna, Mrs Kirk’s own medico-legal expert. In a report on the first two sets of videos, dated 28^th February 2007, which remained undisclosed until these contempt proceedings, Dr McKenna said:

“The difficulty at present however is in resolving the difference between Mrs Kirk’s verbal and written evidence and that of the covert video surveillance. The most extensive video evidence is on the 7^th December 2005. She had been examined however by Dr Bernstein in October 2005 and had completed an application for disability in January 2006 and both the comments she gave to Dr Bernstein and the comments on the application in 2006 are not consistent with her abilities on the video surveillance. The explanation for this is either that on each occasion she was videoed and particularly on 7^th December these occasions happened to be a very good day, or that she has either consciously or sub-consciously exaggerating her disability.

In my opinion her ability on the video both in terms of upper limb movements and lower limb movements from the evidence of the 7^th December is not consistent with her history of significant disability and although it could be argued that this would have been a better day than most, in my experience her ability is beyond that of the range that I would anticipate someone with the description of disabilities Mrs Kirk has described. It is therefore my conclusion that Mrs Kirk has exaggerated her disability during the course of her recent examination for the purpose of this Report and possibly also in the earlier Report when I examined her only six months before the first video evidence. It is difficult to be confident whether her exaggeration is wilful or subconscious. It is my opinion that the perception of disability in many patients with fibromyalgia is different than the reality. Therefore it is possible that the exaggeration in Mrs Kirk’s symptoms and disabilities is subconscious. Nevertheless there is no doubt that there are significant inconsistencies between the amount of disability expressed by Mrs Kirk and the reality and although it remains likely that she had developed fibromyalgia following the road traffic accident, the degree of inconsistency between her Report and her ability on video evidence is such that it is difficult to be confident about her diagnosis.”

I have highlighted in bold the most critical passage. This was an extremely damning view for Mrs Kirk’s own expert to have reached. It is frankly impossible to see how the personal injury action could have been maintained in the light of these comments.

The Blue Badge Application

The ‘application for disability’ to which Dr McKenna referred in his report above was the application made by Mrs Kirk on 10^th January 2006 for a disabled parking blue badge. One question in the claim form that she completed was: ‘What is the maximum distance you can walk without stopping, severe discomfort, or help from another person?’. Mrs Kirk replied: ’10 steps on good day, bedridden on bad days’. She said that she regularly used as a walking aid ‘moulded handled elbow crutches and a wheelchair’.

There is, on any fair view, an inexplicable gulf between Mrs Kirk’s description of herself on a good day in that application form, and the evidence of the video surveillance just a month before. In such circumstances, Dr McKenna’s views, noted in paragraph 50 above, should not have come as a surprise to anybody.

Developments in The Litigation

In the first part of 2006, there were a number of significant developments in the litigation. The surveillance videos referred to at Sections 3.8 and 3.10 above were disclosed to Mrs Kirk’s team in March 2006. The applicant’s solicitors obtained an order requiring Mrs Kirk to re-sign her first witness statement with a compliant statement of truth. Subsequently, they made an application for disclosure of the documents relating to Mrs Kirk’s original application for her disabled parking badge in 1999 (to the existence of which they had been alerted by Mrs Kirk’s medical records), which obviously went to the point that Mrs Kirk’s physical condition prior to the accident was much worse than had previously been identified. It is not unfair to say that, from Mrs Kirk’s perspective, significant storm clouds were beginning to gather.

Despite all this, Mrs Kirk initial approach was to carry on. On 10^th April 2006, she re-signed her first statement without making any changes to it. On 30^th May, she produced a witness statement in which she sought to explain the videos. A week later, on 7^th June 2006, she provided a 33 page statement which dealt, amongst other things, with the disabled parking application in 1999. The statement contained some more details about Mrs Kirk’s back problems before the accident, although it did not seek to alter or modify any part of her first statement.

The Third Set of Videos

A further series of videos were taken on 10^th, 11^th and 12^th October 2006. The video for the 11^th October does not identify Mrs Kirk so is therefore irrelevant. The video of 10^th October 2006 shows Mrs Kirk walking into and back from a school. She is also seen driving and reversing the car. There is again no sign of disability.

The video of 12^th October 2006 shows Mrs Kirk going to a sub-post office and walking to and from her car without any signs of discomfort or disability. At the post office counter she appears to lean against the counter but there is no suggestion that this is necessary or required. Her walking is apparently normal.

Mrs Kirk’s Response To The Part 18 Request

The applicant produced a Part 18 request in the personal injury litigation dated 5^th July 2006. It was not answered by Mrs Kirk until 26^th September 2006. In it, Mrs Kirk confirmed the truth of the matters identified in the schedule of damages (paragraph 34 above) and in her three witness statements (section 3.9 and paragraph 54 above). In addition:

The Claimant was referred to the Incapacity for Work Questionnaire, completed by her and signed on 9 September 2004 (section 3.5 above), as follows:

In relation to Dr Bernstein's examination of the Claimant, the Claimant was asked:

In relation to the Claimant's application, on 10 January 2006, for a European Blue Badge Scheme of Parking Concessions for disabled and blind people (section 3.11 above) the Claimant stated that she had signed the application form on 10 January and she responded as follows to the questions asked at (d) and (e):

The End of the County Court Litigation

There are two conflicting versions as to how this litigation came to an end. Mrs Kirk told me that, by September 2006, she was worn down with exhaustion with dealing with the personal injury claim and the ‘endless requests’ made by the applicant. She decided that she wanted to get out of the litigation, really at any price. This evidence was supported by both her brother and her husband and there was even a suggestion that, if the litigation had continued, Mrs Kirk would have been suicidal. It appears that, in September/October 2006, in response to these instructions, her then solicitors informed the applicant’s solicitors that they would take the money in court and would accept the cost consequences. Mrs Kirk must therefore have known that, on such a basis, the claim was not going to lead to any significant financial recovery at all.

The point is fairly made by Mr Featherby QC, on behalf of the applicant, that if Mrs Kirk’s physical condition was as bad as she claimed, this was an inexplicable way to end the County Court litigation. The outstanding requests for disclosure and further information had both been dealt with, and a trial could have been anticipated in the first half of 2007. Accordingly, he submitted, the only rational explanation was that Mrs Kirk and her advisors had realised, what with the videos, the disclosure of the pre-accident documents and the answers to the Part 18 request, the claim was not going to succeed. He submitted that such a pessimistic conclusion would have been confirmed when the claimant’s team saw Dr McKenna’s report (paragraph 50 above).

At all events, it is accepted that the personal injury litigation was over ‘bar the shouting’ by the end of 2006/early 2007. However, it took some months before the consent order was agreed, that being dated June 2007. I am told that the figure for costs payable to the applicant’s solicitors has only recently been agreed at £21,000. The money remains in court.

The Contempt Proceedings

Two further surveillance videos were shot on 30^th August 2007 and 1^st October 2007. They both show Mrs Kirk shopping in Leyland. In both she is walking and standing in the street and inside and outside banks. Again there is nothing to indicate any sign of disability, although she was apparently in Leyland on both occasions to visit an acupuncturist. In the second video, taken on 1^st October 2007 she appears extremely relaxed and sharing a joke with the man behind her in the queue to use the cash-point machine.

The application for committal for contempt of court was issued on 20^th November 2007. As noted above, Cox J gave permission for the proceedings to be brought on 24^th July 2008. Further directions have been given on 14^th October 2008 and 19^th January 2009. At the trial, the applicant relied on the documents and on the contents of the videos. No oral evidence was called in support of the application. In response, the respondent gave evidence herself, and called Dr Johnson, and a variety of family members and friends to give evidence on her behalf. Some of them gave evidence by reference to their statements in the original proceedings, which were short and prepared before the relevant witness had seen the videos.

CREDIBILITY/FINDINGS OF FACT

Mrs Kirk’s Condition

I make a number of findings of fact in Mrs Kirk’s favour. For the reasons set out below, these findings will inevitably mean that many of the allegations of contempt of court must fail.

First, I accept Dr Johnson’s evidence that Mrs Kirk had a chronic pain problem prior to the accident. Secondly, I also accept his evidence that, whilst the accident might have had, at most, a minor impact on the overall progression of her condition, it was not completely irrelevant. I therefore find that Mrs Kirk was injured to some extent by the accident.

Thirdly, for that reason, I find that Mrs Kirk was entitled to bring her personal injury claim. Fourthly, I find that it was not unreasonable that she herself thought, when she commenced those proceedings, that her condition from mid-2002 onwards was due to the road traffic accident. There was at least some support for that conclusion from her medico-legal experts, especially Dr McKenna.

Fifthly, I am also prepared to find that, on the evidence, it is more likely than not that Mrs Kirk has fibromyalgia. Whilst the experts in the County Court proceedings disagreed about the validity of that diagnosis, that was Dr Johnson’s evidence before me, and he was not challenged about it. That is, therefore, a finding in Mrs Kirk’s favour, because it provides some medical explanation for some of her vivid descriptions of her disabilities. But it is not all one way. Mrs Kirk was keenly aware of her fibromyalgia and the common symptoms of that condition; she therefore knew that one of its most common features is its variability.

In accordance with the cases noted in section 2.3 above, I consider that I should be slow to criticise Mrs Kirk if, in her statements and her comments to examining doctors, she emphasised the worst elements of her physical condition. This was partly due to her understandable desire to convince others of the extent of her suffering, and partly due to what Dr Johnson called ‘her heightened perception of pain’. I go on to explore the limits of what was and was not acceptable in the presentation of her condition in section 4.4 below, particularly bearing in mind its variability.

It seems to me that these various findings of fact are unexceptionable in the light of all the evidence. But they mean that the somewhat simplistic nature of much of the applicant’s case, to the effect that the videos automatically meant that Mrs Kirk’s descriptions of her own symptoms were untrue and dishonest, must fail. The reality of this case is, and always was, rather more complicated than that.

Credibility Generally

In addition to these various findings of fact in Mrs Kirk’s favour, I also accept much of the evidence called on her behalf. Mr Cowan submitted that the credibility of her evidence, and her personal injury claim, was supported in these proceedings by the series of respectable and patently honest witnesses that were called on her behalf. I certainly accept that Mrs Evans, Mrs Campion, Mrs Baron, Mrs McVeigh, Mrs McQueen, Mrs Brown, and Mrs Wright were all patently honest witnesses and I do not doubt the reliability of their evidence. In essence, however, I consider that these witnesses were either providing character evidence of a very general nature, or noting that Mrs Kirk had suffered a good deal with her physical condition over the last decade (not differentiating between the pre- and post-1998 condition) and that the videos had caught her on what were, for her, extremely good days. I broadly accept that evidence. However, as noted elsewhere in this Judgment, some parts of the individual evidence of these witnesses were directly contrary to Mrs Kirk’s case.

Moreover, the findings of fact that I have made, and my acceptance of the evidence of the witnesses noted above, does not mean that I must automatically accept Mrs Kirk’s evidence. On the contrary, for the reasons set out below, I regard Mrs Kirk as an unreliable witness, and that must affect the view that I form of the overall credibility of her evidence. Although there were a number of aspects of Mrs Kirk’s evidence that were unsatisfactory (the raising of new points that she knew could not be checked; the resolute refusal to accept the obvious discrepancies between the various documents that she had signed) there were two particular areas of concern which have led me to view her evidence with concern: her presentation of her pre-accident condition (section 4.3 below) and her case as to how the County Court litigation came to an end (section 4.5 below).

Furthermore, I should say that, whilst I regarded Mr Kirk as a generally honest witness, it was notable that on a number of occasions, he admitted that he was unable to reconcile Mrs Kirk’s claim documents with the true position. As for Mrs Kirk’s brother, Mr Knowles, who had been closely involved in the County Court litigation, there were occasions during his evidence when I concluded that he was hiding behind syntax and linguistics in order to try and minimise the effect of what were, on the face of it, competing statements which were wholly incapable of being reconciled. It was no answer, when it was demonstrated that he had indicated in his statement in the County Court litigation that the pre-accident condition was much better than it actually was, and that he was actually referring to the pre-1998 condition (which on a proper analysis was irrelevant to Mrs Kirk’s claim) that, as he put it, “I didn’t specify any dates”. In those circumstances, I am unable to find that Mrs Kirk (and those most closely involved in her claim) always gave satisfactory evidence.

The Presentation Of Mrs Kirk’s Pre-Accident Condition

I have touched on this topic at paragraph 18 above. The relevant parts of the statement are identified at paragraphs 42 and 43 above. In my judgment, Mrs Kirk’s presentation of her pre-accident condition in her first statement was highly misleading, because it omitted to draw any distinction between her condition/lifestyle before her back problems in 1998 and her condition/lifestyle afterwards. I cannot accept that this was an oversight as Mr Cowan put it (“these things happen”), or that, as Mrs Kirk put it during her cross-examination, she ‘got her tenses muddled’. Mrs Kirk’s first statement, and those of her husband and brother, both say in terms that by 2000, Mrs Kirk was her old self again, and that she had resumed her original all-action lifestyle. On the basis of her oral evidence to me, and on the basis of Mrs Evans’ evidence, that was simply untrue; before the accident, due to the problems with her back, Mrs Kirk had had to accept a much more limited lifestyle.

The whole purpose of Mrs Kirk’s first statement in the personal injury litigation was to contrast her ability before the accident to undertake numerous activities, with her much more limited lifestyle after the accident. The evidence had no other relevance. I find that Mrs Kirk (and her brother and husband) were aware of that and they deliberately omitted to make any reference to the limitations on her lifestyle after the problems with her back in 1998, so as to lead the reader of their statements inexorably to conclude that it was the accident which caused all of these limits on Mrs Kirk’s lifestyle, and not anything else. This was a serious attempt at misleading the court. That conclusion must colour my view of the rest of their evidence.

The Presentation Of Mrs Kirk’s Post-Accident Condition

As summarised in section 4.1 above, I find that, after the accident, Mrs Kirk did suffer pain and disability. As noted above, I think it more likely than not that she would have suffered most (if not all) that pain and disability anyway due to her long-standing condition and that it was not caused by the accident. However, I accept that Mrs Kirk would not necessarily have been aware of that (particularly at the outset of the County Court litigation) and, even if she was aware of that potential diagnosis, she was not bound to accept it. It was therefore not unreasonable or dishonest for Mrs Kirk to believe that the symptoms from which she was suffering had been caused by the accident.

However, as we have seen, one of the features of the presentation of Mrs Kirk’s post-accident condition was the unremittingly bleak terms which were used to describe it in the statements and the other verified documents. But, as was repeatedly said in court, a feature of fibromyalgia is that it is variable; that there are ‘good days and bad days’. But any fair summary of the statements and other verified documents produced by and on behalf of Mrs Kirk before and during the County Court litigation make little or no reference to any such variation. Although both the Disability Living Allowance form (section 3.4 above) and the Incapacity for Work questionnaire (section 3.5 above) expressly required evidence of variation to be given if it existed, I consider that Mrs Kirk deliberately chose not to highlight those matters in her answers.

Another example of the bleak terms that Mrs Kirk used was in her application for a blue disabled parking badge in January 2006 (section 3.11 above) when, on her good days, she described herself as being able to walk only ten yards without stopping, needing help from someone else or severe discomfort. On any fair view of the video of 7^th December 2007, as her own expert identified, that is not what can be seen when Mrs Kirk was in Preston just a few weeks before the application was made.

Accordingly, in my judgment, where Mrs Kirk was at fault was not so much for her endless descriptions of her bad days, but for her failure to identify the relatively normal life (even if it was accompanied by some pain) that she was able to lead on her good days. That has inevitably led me to conclude that some aspects of her presentation of her post-accident condition were very unreliable.

The End Of The Litigation

In addition, I am unable to accept the explanation proffered by Mrs Kirk (and her brother and her husband) to the effect that she withdrew from the County Court litigation because she was exhausted by it, and that the videos and other matters noted above had no impact on that decision at all. I am afraid that such a conclusion stretches credibility to well beyond breaking point. There was no expert evidence, and indeed no contemporaneous factual evidence, to suggest that, in September 2006, Mrs Kirk had no alternative but to abandon her personal injury claim for medical or psychiatric reasons. Her brother, Mr Knowles, said that he thought that the £25,000 which they were now taking was “an exceptionally low” figure.

On the contrary, the evidence pointed unequivocally to the rapidly worsening situation for Mrs Kirk in the County Court litigation. She had been identified on a number of videos behaving on a way that was very different from her presentation and description of her post-accident condition. The applicant’s solicitors were also now aware that her pre-accident condition was much worse than she had explained in her statements and had even lead to her being granted a disabled parking badge by Lancashire County Council. She had had to re-sign her first statement with the proper statement of truth. And her own doctor was shortly to conclude that the videos were, on the face of it, incompatible with her own descriptions of her condition.

In those circumstances, it seems to me that it is idle to suggest that these factors, the videos in particular, were not the principal reason that led Mrs Kirk to accept such a disastrous settlement. Even Mr Knowles was driven to accept that the videos were the only obvious reason for the sudden change of heart. It was unclear to me why Mrs Kirk maintained that this was not the case, in the face of such overwhelming evidence the other way. After all, she could have explained that, as may have been the case, although the videos showed her on a very good day, she recognised (or was advised), as Dr McKenna suggested, that the impact of the videos in court might be devastating. But that was not her explanation, and I am bound to conclude that the credibility of her evidence was further reduced as a result.

PARTICULARS OF CONTEMPT

The alleged particulars of contempt work in this way. Paragraph 8 sets out six documents which Mrs Kirk verified by way of statements of truth. Paragraph 9 then goes through each of those documents, one by one, identifying particular passages within it. Then, at paragraph 10, it is said that the particular passages from the statements identified in paragraph 9 were false and were made without an honest belief in their truth. Particulars of the falsity are then provided.

During Mrs Kirk’s extensive cross-examination, there were a number of recurring themes. Amongst them were her descriptions of her activity levels before the accident; her obtaining of the disabled parking badge in 1999; and the allegedly false nature of the Disability Living Allowance form of 2003. In his final submissions, Mr Cowan made the point that whilst these three matters might be (and in my judgment are) relevant to Mrs Kirk’s credibility, they are not relied on in the particulars of contempt in paragraph 9 of the pleading. He maintained that, in a quasi-criminal action for contempt such as this, it was extremely important to analyse the case by reference solely to those pleaded allegations, and that it was not appropriate to find other potential examples of contempt of court which had not been pleaded as such

I accept Mr Cowan’s submissions on this point. I have concluded that, whilst the three matters noted above are relevant to credibility, and I have indeed taken them into account for that purpose, they are not to be treated as part of the pleaded case on contempt. I agree that, when someone faces a committal for contempt of this sort, they are entitled to know precisely the nature of the case that they have to meet. That case must be that set out in the pleadings, and no other. Accordingly, whatever other allegations the applicant may have been able to make, I focus my analysis entirely upon the pleaded particulars of contempt.

What I do in Section 6 below is this. I set out each of the passages in the six documents complained of and then analyse, by reference to the questions noted in paragraph 8 above, whether they are false; whether their falsity would have interfered with justice and whether, when they were made, Mrs Kirk had an honest belief in their truth.

ANALYSIS AND CONCLUSIONS

The Particulars Of Claim

The words in the particulars of claim of which complaint is made are as follows:

“[Mrs Kirk] suffered neck pain which radiated out into her shoulders… Her symptoms settled down, only to flare up severely in January 2002…. Her symptoms deteriorated causing her lower back to flare up during the summer of 2002 resulting in her being signed off work on 7 October 2002”

On my analysis, the allegation that this statement amounts to a contempt of court fails at the first hurdle. I do not accept that this statement is false. It seems clear that Mrs Kirk did suffer from neck pain following the accident. It also seems unarguable that those symptoms settled down and then flared back up in 2002 necessitating her leaving work on 7^th October 2002. I accept, of course, that the flare-up of her symptoms may well have been the result of her pre-existing condition, as Dr Johnson believes. But that does not mean that this brief statement of the aftermath of the accident is not entirely accurate.

I should add by way of completeness that, even if I was wrong and this statement was false, there can be no doubt that Mrs Kirk honestly believed that these were her symptoms during that period. Further, the overwhelming likelihood that these symptoms were in truth due to her pre-existing condition was not clear until later.

For these reasons, the first allegation of contempt of court must fail.

Schedule of Damages

The allegation is that ‘the schedule of damages gave the impression that the respondent was a seriously and permanently disabled woman incapable of remunerative employment and in need of substantial care and assistance’.

Again, I do not consider that this allegation gets over the first hurdle. It was not false: Mrs Kirk was indeed suffering from a number of disabilities at the time that the schedule was prepared in late 2004. The fact that they were almost certainly due to her pre-existing condition does not affect the truth of the statement.

Moreover, even if I was wrong about that, it is clear that Mrs Kirk honestly believed that at the time (January 2005) she was a seriously and permanently disabled woman. What is more, that case was supported by Dr McKenna’s report of 29^th September 2004 (paragraph 36 above). I could not therefore find, even if the impression given in the schedule of damages was false, that Mrs Kirk had no honest belief in the truth of her disabled condition as set out in the schedule. On the contrary, I conclude that she did, and would have been able to rely on Dr McKenna’s report in support of that belief.

For those reasons, I reject the second allegation of contempt of court.

The Witness Statement 10^th April 2006

It will be recalled that this was the statement originally signed in mid 2005 but was subject to a non-compliant caveat and was re-sworn on 10^th April 2006. The words in this statement about which complaint is made are very specific, and do not include Mrs Kirk’s descriptions of her pre-accident condition. The particular statements in issue are:

“(1)

The Respondent’s complaints about “difficulties getting in and out of bed - need assistance”, “problems climbing stairs”, “balance problems”, “require elbow crutches and/or wheelchair” and “unable to go shopping unaided”.

(ii)

The Respondent’s statement that “walking around the house is sometimes not possible, but other days I can walk around my house at a slower pace. I have been provided with moulder grip elbow crutches and a wheelchair, which are used as required….Since June 2004 I have been less able to walk….” And “I have… been unable to go to the cinema”.

(iii)

The Respondent’s statement that “I am bedridden some of the time”, “I need assistance to go to the bathroom” and “other days I manage to get downstairs but am very limited in what I can do and struggle to make a hot drink and a light meal for myself. These periods of extreme disablement I refer to as my “bad days”.

(iv)

“I would suggest that my health has deteriorated progressively over the past 3.5 years since the RTA and I have become more reliant on my husband, parents family and friends for care and support”.

With one possible exception, I cannot find that these particular statements were false. I am in no doubt that these statements were generally describing Mrs Kirk on her bad days: indeed, she herself makes that very point. There was considerable support in the oral evidence that this was indeed her condition on such bad days. I refer in particular to the evidence of Mrs Campion, Mrs McVeigh and Mrs McQueen.

The possible exception to this general conclusion was the statement that Mrs Kirk was “unable to go shopping unaided” which is unqualified, and therefore suggests that Mrs Kirk could never go shopping unaided when the statement was re-signed in April 2006. That was untrue: see the evidence of the second and third sets of videos. But I have to acknowledge that when the statement was written (end of 2004) it may have been true, and the only evidence from the first set of videos – when Mrs Kirk was shopping with her daughter in Lidl in March 2005 – might be said to support the statement, since her daughter is usually pushing the trolley and looking after the bags. It would, I think, be wrong in principle to find Mrs Kirk in contempt of court merely because of the date on which the revamped statement of truth was added.

Accordingly, I do not accept that the passages in the first statement about which specific complaint is made are, of themselves, false. On the contrary, I believe that they are supported by the other evidence.

Of course, for the reasons set out in section 4.3 above, I consider that the witness statement in question can be severely criticised for its incorrect depiction of Mrs Kirk’s pre-accident condition and for its almost complete failure to recognise that there were good days (possibly many good days), in which these symptoms were not apparent, and to describe what she was able to do on those days. But neither of those elements of this statement are said in the pleaded particulars to give rise to a contempt of court, so I make no findings to that effect.

The Witness Statement 7^th June 2006

It will be remembered that this was the statement which dealt in much greater detail with the pre-accident position. However, the complaints about it are concerned with Mrs Kirk’s references to her condition in the period after the accident. The words about which complaint are made are as follows:

“(i)

“…at that time [presumably early 2003] my severe disabilities, chronic exhaustion and pain had created another identity with which I was still battling.”

(ii)”… my increasing pain and exhaustion, poor sleep, etc… I was struggling to continue my activities of daily living…”

(iii)

“… I started a slow decline in Autumn 2005 which lasted through the winter … I am struggling at the moment both physically and psychologically”

(iv)

“… I have had [crutches since May 2003] and found them invaluable”.

(v)

Various averments that the respondent has needed special equipment because of disabilities in her upper limbs.

(vi)

Averments that the respondent is too disabled to wash or do her hair, or to have it washed or done.

(viii)”… my severe disability…” with an averment that the respondent continued to deteriorate at least up to January 2006.

Again it seems to me that the same points apply as are set out in section 6.3 above. I cannot find that these descriptions are false per se. Where I think they can be criticised is that they do not allow for any light and shade; that they do not contain any description of the good days. But that is not alleged in the particulars to be a contempt of court. I cannot find that the passages set out in the preceding paragraph were false or that, if they were, there was no honest belief in their truth. Again, therefore, the fourth allegation of contempt of court must fail.

The Part 18 Answers

A large number of the Part 18 answers are relied on as containing false statements. There are eleven in all. They were as follows:

That the statements Mrs Kirk made in the Incapacity for Work questionnaire which she signed in September 2004 were true

Some of those statements are set out at section 3.5 above. Those that Mrs Kirk verified by her answers to the part 18 request are set out in paragraph 57a) above. I accept that these statements were made at a time when Mrs Kirk felt particularly incapacitated. I also acknowledge that they were made some months before the first of the videos. But Mrs Kirk acknowledged in her evidence that she understood when she signed the form that, if the information was incomplete or incorrect, then action might be taken against her.

I have concluded that the answers verified by the part 18 answers were false; they were so incomplete that they were positively misleading. Although she knew that her answers had to be complete, Mrs Kirk deliberately chose in her detailed answers to describe only her bad days. There was no description of her good days, despite the repeated requests in the questionnaire to identify whether (and if so the extent to which) the symptoms varied from day to day. Whilst it may not be a contempt of court to exaggerate symptoms to an examining doctor (for the reasons explained by Bell J in Rogers), I consider that very different considerations apply to an application for state benefits which expressly asks about variations in the stated condition; which warns of the consequences if the answers are incomplete; and which is subsequently verified by a statement of truth in litigation.

I also consider that, in answering the questionnaire, Mrs Kirk generally exaggerated her symptoms to a significant and unconscionable degree. For example, she said she could not raise either arm to her head as if to put on her hat, but the video taken a few months later shows her doing just that in the supermarket. Time and again she ticks the ‘worst condition’ box, and time and again she couches her symptoms in the most extreme terms. Yet the first set of videos is completely at odds with her answers. Although that first set was not taken until 6 months later, there is nothing (beyond one vague reference in the medical notes) to say that Mrs Kirk improved over the intervening months, and there is a good deal of material from Mrs Kirk herself which suggests that, notwithstanding the pain programmes, she was in fact deteriorating over that period. Both her mother, Mrs Knowles, and her friend, Mrs Campion, agreed that the videos ‘were typical’ of Mrs Kirk on her good days, yet there was not a hint of any such respite in these answers to the questionnaire.

Although not one of the passages to which express reference was made in the part 18 request, I must also comment upon the passages in Mrs Kirk’s answers set out at paragraph 30 above. Despite the absence of any medical evidence whatsoever to support it, Mrs Kirk claimed in these answers that she had suffered brain injury (leading to memory loss, the use of the wrong words and the like). That was simply untrue. It was not something she put in any of her statements in the personal injury proceedings; nor was it attested to by any of the numerous witnesses called to give evidence on her behalf. Dr Johnson confirmed that there was no psychiatric explanation for any of Mrs Kirk’s actions. I am therefore bound to say that I considered this part of the questionnaire to be a shocking exaggeration.

Accordingly, I consider that the statements complained of in the answers to the Incapacity for Work questionnaire in 2004 (being those which were then verified in the part 18 request) were false. They described her difficulties in walking without any regard to the many days when she was able to walk quite normally, as shown on the videos. I also consider that, having verified the truth of her answers in the Part 18 request, the falsity of these statements would have interfered with justice: Mrs Kirk would have relied on this questionnaire, and the underlying application for significant Incapacity benefits, as supporting a claim for significant damages to which she was not entitled. Although Mr Cowan argued that this such interference was unlikely, because the answer to the part 18 request came after Mrs Kirk’s then solicitors had indicated to the applicant’s solicitors that they wanted to negotiate a settlement, it seemed to me that, on a proper analysis, that chronology actually undermined his case rather than supported it. It meant that the false statement in answer to the part 18 request was made at a time when Mrs Kirk needed to bolster her case for the purposes of negotiation, and at a time when she knew – because the applicant’s solicitors had indicated it – that she might face allegations of fraud. The answers to the request were, therefore, always going to be very important to the outcome of the personal injury claim and/or the negotiations, and Mrs Kirk knew it.

The final question is whether Mrs Kirk had an honest belief in the truth of these statements. In my judgment, whilst she may have honestly believed in some of the statements in the questionnaire, I conclude that she did not honestly believe in many of the others, including those verified in the subsequent response to the part 18 request. I find that Mrs Kirk did not honestly believe that she had memory loss or that she spoke words that she did not mean to say, and there was no other evidence to support any such suggestion. That is, however, not a pleaded particular of contempt. But as to those which are (paragraph 57a) above), I conclude that Mrs Kirk can have had no honest belief that these answers dealing with her walking ability were complete, or dealt in any way with the variability of her condition: because they were describing only her bad days, I find that she knew that they were entirely misleading. I therefore find that Mrs Kirk did not honestly believe that these statements were true.

For those reasons, I consider that this first particular of contempt arising out of the part 18 answers has been made out.

Mrs Kirk used walking aids when needed, both at home and outdoors.

I reject this as a particular of contempt. It is plain that Mrs Kirk did use crutches at times and did use a wheelchair. There was, for example, unchallenged evidence from Mrs Browning and Mrs McQueen as to the use of the wheelchair in Edinburgh in 2003. Both her mother and Mrs Brown referred to her frequent use of crutches. Accordingly, I find that this statement was not false.

That the statements Mrs Kirk made to Dr McKenna and contained in his report of 29 September 2004 were true.

The statements made to Dr McKenna were a description of her symptoms and her restricted lifestyle. They appear to be consistent with Mrs Kirk’s description of her bad days. They were not therefore false. Dr McKenna apparently accepted them. I also find that Mrs Kirk honestly believed them. In addition, in accordance with the principles noted in section 2.3 above, she was entitled, in her interview with her medico-legal expert, to emphasise what she believed to have been the physical effects of the accident. In those circumstances the contempt of court allegation in relation to this particular has not been made out.

That the statements Mrs Kirk made in the schedule of damages were true.

That, in accordance with the schedule, Mrs Kirk needed “a little less” than 1.417 hours of care and assistance a year

I have rejected the allegation of contempt of court arising out of the schedule of damages at section 6.2 above. These particulars therefore add nothing to that allegation and must also be rejected.

That the statements made in Mrs Kirk’s witness statement 10^th April 2006 were true.

I have rejected the claim for contempt in relation to the particular passages of the first witness statement about which complaint is made, for the reasons set out in section 6.3 above. On one view, this might be said to be a wider allegation, because it refers generally to the whole statement, not just the particular words complained of and set out in section 6.3. But, for the reasons noted at section 5 above, it is not appropriate to consider allegations of contempt which have not been pleaded. In circumstances where particular passages in a witness statement have been identified as constituting a contempt of court, it would not be fair or appropriate to consider other passages, which have not been specifically pleaded by the applicant, which might be a contempt. In essence, I again consider that the benefit of the doubt should be given to Mrs Kirk.

In this way, although I am very unhappy with how this first statement dealt with both Mrs Kirk’s condition before the accident (section 4.3 above) and the variability of her condition (section 4.4 above), I accept Mr Cowan’s submission that these matters are not pleaded as constituting any element of Mrs Kirk’s contempt of court.

Accordingly, this particular has not been made out.

That the statements Mrs Kirk made to Dr Bernstein contained in his report on 2^nd November 2005 were broadly true.

These statements were a description of her condition on bad days. It seems to me therefore that the position is the same as in respect of the statements she made to Dr McKenna (paragraph 109 above). Accordingly I do not consider that this amounts to contempt of court.

That the statements Mrs Kirk made in her application for a disabled badge which she signed on 10^th January 2006 were true, or broadly true.

The relevant statements are set out in section 3.11 above. This was an unusual statement by Mrs Kirk, because it expressly purported to deal with both good days and bad days. However, coming as it did so soon after the videoed trip to Preston, I have no hesitation in concluding that the statement that Mrs Kirk could only walk 10 steps without stopping, needing help from someone else, or suffering severe discomfort, was false. Although her answers do not say this, Mrs Kirk had to plump for ‘severe discomfort’ because the video ruled out stopping or third party help. That is what she said in her part 18 answer. I consider that the expression ‘severe discomfort’ has to be considered in its context; it is being used as an alternative to stopping walking or needing help. It therefore means serious discomfort that might be so severe as to prevent the sufferer from walking further.

In my judgment, Mrs Kirk’s answer is simply irreconcilable with the video evidence. The video evidence demonstrates no sign of pain or discomfort whatsoever. Tellingly, I am bound to note that the evidence of many of her own witnesses contradicted Mrs Kirk’s case on this issue. For example, when Mrs Kirk’s description of her condition (taken from the blue badge application) was read to Mrs Evans, her old friend, she candidly admitted that that was not a description of Mrs Kirk that she recognised. Mrs Baron also disavowed such a description. Even Mrs Campion, the feistiest of Mrs Kirk’s old friends, said that the description of not being able to walk more than 10 paces without severe discomfort was something she had seen ‘on many occasions’, as if this was a description of Mrs Kirk on a bad day, not the best that she was able to manage. Mrs Browning was even clearer on this aspect of the case: she said that the description of Mrs Kirk only being able to walk 10 paces without severe discomfort was of her “on a very bad day”, the complete opposite of Mrs Kirk’s claim.

All of this means that, in order for me to find that the statement in the blue badge application was true, I would have to disregard the evidence of all those witnesses called on her behalf, and accept Mrs Kirk’s suggestion that, although she was suffering severe discomfort throughout, she did not let it show in her face, or in her posture, or in her gait. Because of my concerns about the wider credibility of her evidence, I am simply unable to accept such an explanation. It is in any event irreconcilable with the evidence of Mrs Browning, who said that she could tell from Mrs Kirk’s face when she was in pain, because ‘it looks grey and she looks so sad’. There was no such evidence in the video.

In short, I consider that the video of 7^th December is wholly contrary to what Mrs Kirk said in her blue badge application. That was apparently the same view that Dr McKenna reached in his report of February 2007. Accordingly, I find that the statement about Mrs Kirk’s condition on a good day was false and that she can have had no honest belief that it was true. Having turned her mind to the difference to good days and bad days, she plainly gave a dishonest answer.

I should also say that, so it seems to me, this statement (once verified by the part 18 answers) would have interfered with the course of justice in the personal injury claim. I find that Mrs Kirk knew that it would, because it would have been a document and a classification (the holder of a disabled parking badge) that she would have relied on in the County Court litigation to demonstrate the high level of her disability. Even if, as Mr Cowan submits, by the time the statement was verified in the answers to the part 18 request, the lengthy negotiation process had started, that would only have made it more obvious to Mrs Kirk that she needed to be entirely honest. I find that she also knew that a false statement might well improve her position (or at least help make it less bad) in those negotiations. At one point, there was a hint in Mr Cowan’s submissions that, because by September/October 2006 the applicant’s solicitors and insurers were ‘on to’ Mrs Kirk, her false statements at that time could not have interfered with justice. Not only was that argument deeply unattractive (because it was tantamount to saying that it does not matter how great the lie, if the other side are suspicious already), I consider it to be wrong on the facts, for the reasons noted above.

As with the Incapacity for Work questionnaire referred to above, this was a claim for a state benefit and Mrs Kirk signed a declaration that the statements that she made in making this claim were true. She verified that again in the litigation. Unhappily, for all these reasons, I have concluded that that declaration was knowingly untrue and that this particular amounts to a second proven allegation of contempt of court.

The statement that Mrs Kirk regularly (but not always) used elbow crutches, a wheelchair and a walking stick.

I cannot find that this statement was false. True it is that in the videos Mrs Kirk was not seen using such aids but, as Mr Cowan rightly pointed out, those videos only show a tiny proportion of Mrs Kirk’s life during these years. Furthermore there was evidence from other witnesses of her use of such aids: see above. This allegation of contempt is therefore rejected.

The statement that, if more (post-accident) videos had been taken on the days Mrs Kirk was videoed, they would have shown signs of disability.

On the evidence before me, I cannot conclude that this was a false statement. There is a good deal of evidence to suggest that, on her bad days, Mrs Kirk exhibited numerous signs of disability. On that basis alone, this statement was not false.

As I made clear during final submissions, I noted that during her evidence Mrs Kirk alleged that the videos were in some way selective and designed to paint a misleading impression. Mr Cowan made plain that he did not rely on such an assertion, and I in turn indicated that, although I regretted Mrs Kirk’s unfounded allegation, I would disregard it for the purposes of judging her case, and I have done so.For those reasons, I reject this allegation of contempt.

The statements that Mrs Kirk was a seriously disabled person in pain.

I reject the suggestion that this statement was false. I consider that Mrs Kirk was, at least from time to time, suffering severe pain and was under a number of disabilities. I also accept Dr Johnson’s evidence that she was likely to have a higher perception of pain than many others and that that can be a feature of fibromyalgia. Thus, even if the statement was false, I could not say that Mrs Kirk did not honestly believe it. This particular of contempt of court is therefore rejected.

Witness Statement 31.1.08

In the witness statement in the contempt proceedings, the applicant complains about two comments made by Mrs Kirk as follows:

As to Mrs Kirk’s condition in September/October 2006, there is no evidence other than her statement as to her condition at that time. The videos taken in October 2006 do not suggest that she was very unwell, but the condition was variable and those videos could have been good (or at least better) days. I would not be prepared to find that, on the basis of the third set of videos alone, Mrs Kirk’s statement was false.

As to her contention that her medical condition ‘has continued unabated’, that assertion was supported by the evidence of Dr Johnson. In addition, I note that Mrs Kirk used her wheelchair on a holiday in Rome as recently as 2007. Although her condition was, by this stage, nothing whatsoever to do with the accident, I am prepared to accept that Mrs Kirk’s medical condition has indeed continued unabated, and that she continues to have good days and bad days.

SUMMARY

For the reasons set out in the preceding section, I have rejected most of the allegations of contempt. That is because the allegations reflect the applicant’s basic case that Mrs Kirk was a malingerer, who was entirely inventing her levels of pain and their manifestation. It was clear from the evidence, as highlighted in Mr Cowan’s able final submissions, that that was an unfair depiction of Mrs Kirk’s written statements and other verified documents. On the contrary, the evidence showed that Mrs Kirk had a pre-existing condition (which would probably have deteriorated regardless of the accident) and that she was entitled to emphasise those symptoms as long as there was an argument that they had been caused or at least exacerbated by her accident.

Mrs Kirk may have exaggerated her symptoms on her bad days, and certainly many of her statements paint such a bleak picture that it is not always easy to accept that they are not exaggerated. But such exaggeration may be a matter of degree and fine distinction, particularly since it can sometimes be difficult for others to empathise with the pain suffered by people such as Mrs Kirk. It would not be appropriate to use the blunt instrument of a committal for contempt of court to penalise her because she may feel or suffer pain more keenly than others. In the light of the high standard of proof in a case such as this, I have, on a number of occasions, felt it appropriate to give Mrs Kirk the benefit of the doubt in considering the allegations of contempt through gross exaggeration.

In my judgment, where Mrs Kirk overstepped all appropriate boundaries was in falsely filling out her claims for state benefits, namely the Incapacity for Work questionnaire in 2004, and the blue disabled parking badge in 2006. Furthermore, when given the opportunity to retract those untruths in responding to the part 18 request, she deliberately re-stated them to assist her personal injury claim. In the former, Mrs Kirk deliberately chose not to identify the variable elements of her condition, or to hint at the existence of days when, as can be seen in the first and second sets of videos, she was able to lead a normal life. Instead, she painted only one side of the picture, despite being expressly requested (if it was appropriate) to identify the range of her condition and its symptoms. It was this deliberate failure, exacerbated by the suggestion of brain injury (for which there was no medical evidence whatsoever), which made those statements false. Given all the evidence, I am bound to conclude that Mrs Kirk knew that these statements were indeed false, and knew that they would interfere with the course of justice when verified in the County Court litigation.

The contempt of court allegation was also made out in relation to the blue badge application, albeit for rather different reasons. There Mrs Kirk did give a description of her good days, but the video demonstrated that her description was patently false. A number of witnesses called to give evidence on her behalf confirmed that it was a false description of Mrs Kirk on a good day. Again, I conclude that Mrs Kirk knew that the description was false, and knew that it would interfere with the course of justice.

Accordingly, although I have rejected the vast bulk of the allegations made against her, I have concluded that, in filling out those two claims for state benefit, and in subsequently verifying them in the County Court litigation, Mrs Kirk was guilty of a contempt of court. I will hear the parties as to the penalty to be imposed in consequence.