Montgomery v Brown

On 22 February 2004 Bruce Montgomery (the Claimant and the Respondent to this application) was seriously injured in a road traffic accident caused by the negligence of Carl Brown (the Defendant/Applicant). Primary liability was never in dispute. The Applicant admitted liability at an early stage, subject to an agreed deduction of 25 per cent for contributory negligence.

On 16 February 2007, and therefore shortly before the three year limitation period expired, the solicitors then acting for the Respondent issued proceedings against the Applicant claiming damages for personal injuries and consequential losses. During the months that followed statements, schedules of loss and expert medical and employment reports were all prepared, in the usual way, for the purposes of assessing quantum. The claim was eventually listed for trial (assessment of damages) on 13 November 2008.

On 11 November 2008 the claim was compromised as follows: (a) judgment for the Respondent in the sum of £63,750, subject to CRU deduction and credit for interim payments, the balance being £23,519; (b) the Respondent to pay all the Applicant’s costs.

Subsequently, as a result of documents relating to the Respondent’s employment and earnings after the accident, which had come into the possession of the Applicant in early November 2008, the Applicant applied for permission to bring proceedings against the Respondent for contempt of court. Permission was granted by this Court (Sir Charles Gray) on 8 July 2009.

The Applicant alleges, essentially, that the Respondent deliberately and dishonestly presented an inflated claim for damages to this Court; and that he lied, both in statements and documents verified by statements of truth and to experts instructed to report on his employment since the accident, claiming that he had done no or very little work whereas, in fact, he had resumed highly remunerative work, often overseas, in 2005. The Applicant alleges that the Respondent did this in a dishonest attempt to recover damages to which he knew he was not entitled, and that he should therefore be committed to prison for contempt of court in seeking to interfere with the course of justice. Mr Featherby QC, appearing for the Applicant, draws attention to the strong public interest in personal injury claimants pursuing honest claims before the courts, and to the need for dishonest claimants to be punished.

The Respondent now accepts that some of the statements relied upon are misleading or incorrect. He accepts, too, that blame is to be attached to him for a high degree of carelessness and irresponsibility in the way that he dealt with some aspects of this case, in particular with his own witness statement, prepared by solicitors on his behalf. However, he denies any dishonest intent in relation to what happened, at any stage. Mr Cousins QC, appearing for the Respondent, submits that the disclosures he did make were in fact intended to reveal the true position, and that they were hardly consistent with a dishonest suppression of the truth. He submits in addition that the Respondent was ill served by his previous solicitors, Osborne Morris and Morgan (OMM). The evidence shows that they failed to take proper instructions; served documents without his instructions; dealt with important matters hurriedly and late, against tight deadlines; and failed to follow up usual avenues of enquiry, which they were both authorised to do and would be expected to do in the circumstances. Whilst no professional negligence claim has yet been commenced, Mr Cousins, choosing his words with care, submits that at this stage I cannot assume there will not be such a claim.

The application was originally heard before me over three days on 19-21 April 2010. It was agreed that I should determine first whether there was a contempt of court and, if so, that the question of penalty should be dealt with on a future occasion.

I heard evidence from the Respondent and from his father Ian Montgomery, Dr El-Assra (consultant psychiatrist) and Andrew Nicoll (employment consultant). I also read the affidavits of those witnesses not called, namely Joanne Pizala, solicitor and partner in Cogents (solicitors for the Applicant), Iain MacKay (orthopaedic surgeon) and Kathryn Montgomery, the Respondent’s mother, together with the various documents exhibited and other documents, reports and correspondence contained in the agreed bundles, or added during the hearing. Following helpful submissions from leading counsel for both parties judgment was reserved.

Events then took a surprising turn, which I shall summarise as follows. The draft judgment was sent to counsel on 11 May 2010, on the usual basis, to enable any typing errors or other obvious errors to be identified and corrected before the judgment was handed down. For the reasons set out in that draft judgment I was not satisfied to the required standard that the Respondent had acted with dishonest intent at any stage and concluded that the application should be dismissed.

On receipt of the draft judgment Mr Cousins indicated in his written response that, after reading it, his solicitor had examined further documents in OMM’s files, which were not in the trial bundle. They had not previously been disclosed because they were considered irrelevant to the issues arising in this application. As a result of this exercise concern was expressed that these documents were inconsistent with some of the passages of the draft judgment, in particular at paragraphs 85 and 88. The documents referred to, showing further communications between the Respondent and OMM during the relevant period, were immediately disclosed to the Court and to the Applicant’s solicitors. Following further correspondence between the parties, additional documents from OMM’s files were then disclosed by letter dated 11 June.

I should immediately make it plain that the Applicant accepts that the Respondent’s present solicitor has at all times acted in good faith, in complying with the standard disclosure obligation, having regard to the allegations he understood were being made against the Respondent and to the legal professional privilege attaching to OMM files. Further, despite receiving confirmation from OMM in September 2009 that they had handed over all the files relating to the Respondent, it became clear to his present solicitors that this was not in fact the case. Further attendance at OMM’s offices has proved necessary. In my view no blame is to be attributed to the Respondent himself for this regrettable situation.

In fact, during the trial concern had been expressed by Mr Featherby as to whether the documents in the trial bundle revealed the full extent of relevant communications between OMM and the Respondent. Some additional documents were produced at that stage, after a further search of the files. After yet another enquiry as to relevant documents, toward the end of the Respondent’s cross-examination, Mr Cousins indicated that those representing the Respondent considered there was nothing further of relevance to any count, which was not already included in the trial bundle. The matter therefore rested there.

Following receipt of the draft judgment, the observations of Mr Cousins and the additional disclosure caused the Applicant’s representatives concern. They took the view, (a) that still further disclosure should be sought; and (b) that the Court would be misled if these additional documents were not all considered and taken into account in arriving at a decision in this case. The matter was therefore listed for a directions hearing on 2 July 2010, when I ordered further disclosure (as set out in paragraphs 1-3 of the Order) and directed that the Respondent should answer any questions from the Applicant arising out of that disclosure, in an affidavit to be served by 17 September. The matter was to be listed for a further directions hearing in early October, at which point consideration would be given as to the appropriate way forward. Mr Featherby indicated on 2 July that the Applicant wished to consider whether to make an application for a new trial, before a different judge.

At the next directions hearing, on 1 October, both parties submitted that the Court had jurisdiction to reconsider the findings and conclusions in the draft judgment, if considered necessary, in the light of the further evidence, including further oral evidence. Having considered the authorities, I was satisfied that I did have that power, although it is a power that should be exercised sparingly and only in an exceptional case. See, for example, Charlesworth v Relay Roads [2000] 1 WLR 230, Stewart v Engel [2000] 1 WLR 2268, Royal Brompton Hospital NHS Trust v Hammond [2001] EWCA Civ 778 and Robinson v Bird [2003] EWCA Civ 1820.

Further, the Applicant was content, having regard to the overriding objective, for me to consider exercising that power and therefore to hear the further evidence and submissions. Mr Featherby submitted that a number of specific findings in the draft judgment, and indeed the overall decision in the case, should be reviewed, in light of the new material. Mr Cousins also submitted that I should retain the case and consider all the additional material, factoring it into my assessment and weighing its relevance and impact. However, in his submission, whilst some, minor modifications to the text and content of the draft judgment would now be required, none of the new material justified the displacement of any of the findings already made, or of the overall conclusions in the case.

In the circumstances, and in particular since both sides wished me to retain the case and to reach a final determination, I decided to continue to deal with the matter. Some further directions as to disclosure were given and it was agreed that the Respondent and his father should be recalled for further cross-examination on the new material. The matter was listed for hearing for two days, on 14-15 December 2010, for evidence and submissions. The Respondent filed two further affidavits, dated 17 September and 17 November, and his father also filed a further affidavit dated 19 November.

Unfortunately, listing difficulties meant that the December hearing dates had to be vacated. The case was then re-listed for 15-16 March 2011. At that hearing the Respondent and his father gave evidence and both counsel made further submissions on all the evidence. I then reserved judgment, to enable me to consider the further evidence, together with all the other material before me on the last occasion, and to decide to what extent, if at all, the findings and conclusions on the draft judgment required review. This, regrettably much lengthier judgment is the result of that analysis. It has been necessary for me to refer in more detail to a number of matters considered previously.

There is no real dispute as to the relevant legal principles, although a difference did emerge between counsel as to their application, as will appear. Thus, a person is guilty of contempt of court if, in legal proceedings, he interferes or attempts to interfere with the administration of justice. Such interference may take many forms, but it is common ground that putting forward a dishonest claim, suppressing documents which should be disclosed and making false statements of truth are all examples of contempt.

CPR 32.14 does not introduce a new category of contempt but provides for the possibility of a person being prosecuted for contempt in certain circumstances, 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.”

Similarly CPR 31.23 provides that, subject to the same constraints ((a) and (b)), proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false disclosure statement, without an honest belief in its truth.

CPR 22 .1.(6) provides:

“(6)

The statement of truth must be signed by-

(a)

in the case of a statement of case; a response or an application-

(i)

the party or litigation friend; or

(ii)

the legal representative on behalf of the party or litigation friend; and

(b)

in the case of a witness statement, the maker of the statement.”

Practice Direction 22.3.7 & 22.3.8 provide:

“3.7

Where a party is legally represented, the legal representative may sign the statement of truth on his behalf. The statement signed by the legal representative will refer to the client’s belief, not his own. In signing he must state the capacity in which he signs and the name of his firm where appropriate.

3.8

Where a legal representative has signed a statement of truth, his signature will be taken by the court as his statement:

(1)

that the client on whose behalf he has signed had authorised him to do so,

(2)

that before signing he had explained to the client that in signing the statement of truth he would be confirming the client’s belief that the facts stated in the document were true, and

(3)

that before signing he had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts (see rule 32.14)”

Pursuant to CPR22 everything save a party’s witness statement may be signed by a legal representative, usually a solicitor. It is common ground that a solicitor’s signature creates a rebuttable presumption that the client has authorised him to sign, after being given an explanation as to the effect and consequences of signing the statement of truth.

Those applying for a person’s committal must prove his contempt to the criminal standard. Further, given the criminal nature of contempt proceedings, any genuine doubt should be resolved in the Respondent’s favour.

The relevant test for contempt has been considered on a number of occasions. The principles were referred to in Malgar Limited v. R E Leach (Engineering) Limited [2000] FSR 393, a decision of the Vice Chancellor (Sir Richard Scott) considering the effect of CPR 32.14 on an application to the court for permission to proceed; and Sony Computer Entertainment and Others v. Ball and Others [2004] EWHC 1984 CH (Blackburne J). Two more recent cases provide further examples of their application, namely Caerphilly County Borough Council v. Matthew Hughes and Others (Silber J) 1/12/06 (unreported); and Walton v. Kirk [2009] EWHC 703 QB (Coulson J).

In Malgar the Vice-Chancellor, dealing with the matter at the permission stage, considered the necessary mental state of the person accused and said that it had to be shown in each case:

“….that the individual knew that what he was saying was false and that his false statement was likely to interfere with the course of justice.”

He refused permission in that case because the relevant statements in the respondent’s witness statement were, in the event, not persisted in. If they had been, and “had eventually been found to be as flagrantly and obviously untrue” as was alleged, then he said that his decision might have been different.

In the Sony case Blackburne J. expressed the test as follows, after referring to its formulation in Malgar:

“The need for permission…..enables the court to confine the proceedings to cases where there is a real prospect….that the applicant can establish (a) the falsity of the statement in question, (b) that the statement has, or if persisted in, it would be likely to have interfered with the course of justice in some material respect and (c) that at the time it was made the maker of the statement had no honest belief in the truth of the statement and knew of its likelihood to interfere with the course of justice.”

He then dealt with the substantive allegations in that case, permission already having been granted on an earlier occasion. There was no dispute as to the falsity of the three relevant statements, or as to the fact that, at the time two of them were made, the respondent knew that they were false. The judge found that he knew the third to be false too. When considering the likelihood of an interference with the course of justice if the statements had been persisted in, and of the respondent’s knowledge of such likelihood when he signed his statement of truth, the judge found on the facts that both ingredients were satisfied. At paragraphs 28-29 he found as follows:

“28……If Sony had accepted as true what Mr Ball was representing and had struck a deal on the terms that, through his solicitors, Mr Ball was offering, Sony would have been deliberately misled by Mr Ball about the true scale of his activities.

29.

In my judgment, the conclusion is inescapable: Mr Ball 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.”

The fact that this attempt did not in the event succeed was due to a trap laid for the respondent, which fortuitously brought to light the true position.

In the present case Mr Cousins does not suggest that the fact that the claim was settled on terms agreed between these parties extinguishes any contempt. That must be correct. He submits however that, even if I were satisfied that the statements as to his employment were false, that the Respondent knew them to be false when he made them, and also knew of their likelihood to interfere with the course of justice, I cannot be satisfied on the evidence in this case that the statements would be likely to have done so in fact, even if persisted in. Essentially, this is because, in the normal course of events, solicitors for one or both parties would inevitably have made the usual pre-trial inquiries as to the Respondent’s employment and earnings. It was therefore inevitable that the truth would have come to light before the trial, and that justice would not have been interfered with. This is in fact what happened.

Mr Featherby submits that this approach is incorrect. He submits that the purpose of the CPR regime is to ensure the early, amicable and “cards on the table” resolution of personal injury litigation. Parties must be able to proceed on the basis that statements being made on both sides are true, not that they are a matter of what the maker can get away with, unless or until the other side can discover the truth. In this case, if the Applicant had not discovered the truth, the Respondent would have recovered damages, by settlement or by judgment, greatly in excess of those to which he was entitled. The fact that solicitors had the means to discover the truth before this happened cannot furnish a defence to an allegation of contempt of court. The second question posed by Blackburne J. must therefore be considered as at the time the false statement was made, and as if nothing else had happened subsequently to reveal the truth. It should not be considered by reference to what was, or was likely to be, the end result.

In my judgment the correct approach is that advanced by Mr Featherby, for the reasons he has given. Ultimately, the key issue in this case, as in most if not all cases involving such allegations, is the Respondent’s state of mind at the time false statements, if so they be, were made. In this case I must therefore be satisfied that the statements he made were false; that he knew them to be false when he made them; that at the time they were made they would, if persisted in, be likely to have interfered with the course of justice in some material respect, and that he knew that they would be likely so to interfere. That, in my view, is the test which Blackburne J. identified and applied. I agree with his analysis.

In order to provide the Respondent with full particulars of the alleged contempt, each separate charge was set out in a schedule annexed to the Particulars of Contempt, containing 23 counts. They are not all free standing counts and it is accepted that there is some duplication. Some deal only with evidential matters (for example the statements alleged to have been made to experts were not verified by a statement of truth). Some counts concern the preparation of documents not verified by a statement of truth, and some relate to aspects of the same document, that is, the Respondent’s witness statement.

The free standing counts are these: Count 5 (Particulars of Claim), Count 6 (First Schedule of Loss), Count 7 (List of Documents), Counts 11, 12 and 13 (witness statement), Count 16 (Second Schedule of Loss) and the “umbrella” count, Count 20 (presenting a false claim to the Court), of which all the other counts are alleged instances of that contempt. Mr Featherby suggested in his closing submissions that I should make a single, overall finding (on Count 20) that the Respondent was, or was not, in contempt of court, with reasoned findings on each of the particulars alleged in the various counts.

In the circumstances I shall make findings on each of the individual counts, which are sensibly arranged chronologically, and some of which can be run together. I also consider it appropriate in this case to make specific findings on each of the free-standing counts identified above, in addition to Count 20. That is the basis upon which I proceed.

On all the evidence now before me I find as follows. I emphasise that, whilst making discrete findings on specific issues, I have considered the evidence as a whole in arriving at my findings in this case.

At the time of his accident the Respondent, then aged 29, had been employed by Global Marine Systems for four years. He was working off shore as a systems technician using remotely operated vehicles (ROVs). He was working shifts of ten weeks on and ten weeks off and was based in Portland, Dorset. He maintained and repaired fibre optic cables and also laid them on the seabed. He had worked in this industry all over the world.

On 22 February 2004 he was offered a lift back to the accommodation on board ship by his supervisor, the Applicant. The Respondent sat in the front seat. Tragically, the Applicant lost control of the car and hit a wall head on as he accelerated along the dock. The medical reports indicate that the Respondent suffered a number of very severe injuries, including an aortic transsection, which was life threatening, and closed fractures of his left humeral diaphysis, left clavicle and left fibular. He also had a pneumothorax. He required cardiothoracic and orthopaedic surgery and was disabled for a considerable period of time before making what appears to be a good recovery from his physical injuries, albeit with some residual symptoms. He was not found to have suffered any head injury, although injuries to his face have resulted in anosmia, which is permanent.

Dr Carson, consultant psychiatrist instructed on behalf of the Respondent, considered that there had been a psychological reaction to his injuries. There was some loss of consciousness and amnesia noted at the time and Dr Carson noted symptoms of fatigue, severe irritability, self-isolation and mild agoraphobic and depressive symptoms commencing soon afterwards. The Respondent also began to drink heavily and became alcohol dependent. Dr Carson considered that these symptoms indicated an unspecified adjustment order, similar to those of post traumatic stress disorder, although he thought that they were more likely to be secondary to acquired brain injury.

Dr El-Assra, the psychiatrist instructed by the Applicant, also diagnosed an adjustment disorder, which he thought had probably lasted for some 12-18 months after the accident. There was also some evidence of pre-existing psychiatric history and vulnerability. Dr El-Assra confirmed in cross-examination before me that the Respondent was vulnerable and emotionally disturbed by the accident; and that, for some months afterwards, he had suffered from fatigue and alcohol dependency.

Following the accident the Respondent separated from his partner and, to start with, was living once again with his parents in Fife, Scotland. The unchallenged evidence of his mother, Kathryn Montgomery, is that, after this accident, he suffered from severe mood swings; and that the family were always “walking on eggshells”. Advice offered by his parents would be taken as criticism and deep depressions would sometimes set in. Since May 2006 she describes his mood as continuing to fluctuate on a daily basis. She regards the accident as having had a profound effect upon both her son and the whole family.

The Respondent was initially in receipt of sick pay. In about July 2004 he instructed a local firm of solicitors, Digby Brown in Glenrothes, to pursue a claim for personal injuries on his behalf. Global Marine then went into administration and the Respondent’s employment was terminated on 11 October 2004. Between October 2004 and March 2005 Digby Brown dealt on his behalf with expenses and holiday pay entitlements, about which there was some dispute, and with his claim for a redundancy payment. He was in receipt of incapacity benefit after losing his job.

It is not in dispute that, in about May or June 2005, the Respondent obtained further offshore work, in a non-manual labour capacity, with the organisation Oceaneering International. By this time he states that he was starting to feel physically stronger, was living on his own again, and was keen to get back into the labour market and have a more normal life. He also needed the money. He therefore accepted the offer of work with Oceaneering, although this was, as his mother states, against the advice of his parents who considered him not yet ready to return to work.

There is little documentation before me concerning the nature of this work, or of the contract pursuant to which the Respondent worked. However, the documents disclosed show that, from May/June 2005 until the end of September 2009, apart from some periods when he did no work at all, the Respondent worked for Oceaneering from time to time, and for varying periods of time, on various offshore projects, including projects in the North Sea, Africa and Asia. He worked as an independent contractor, in what he refers to as the “ad hoc” arrangements which are common in this industry, and he was paid on a daily basis. He worked in a supervisory role, operating remotely controlled vehicles under water from a rig or boat, which involved limited physical exertion.

At the hearing in April 2010, the Respondent’s evidence was that the nature of this work meant that he was usually notified of a particular job available for him in the North Sea only on the day before the contract was due to begin. Even in relation to jobs in non-UK waters he thought he usually received only two to three days’ notice of the job. As a result of the further disclosure of emails between the Respondent and Oceaneering, it appears that the periods of notice for some of the projects undertaken in Africa or Asia, between November 2005 and August 2008, were sometimes 7 days or more and the Respondent accepts this. Usually, though not always, the first contact would be by telephone, to ask the Respondent if he was available for work, or for him to ask them about availability. The travel details would then be emailed to him.

It is agreed that the table in appendix 1 (at pages 224-26 to 224-28 of Bundle 2) accurately sets out the periods of work for which the Respondent worked, varying between one week and six to eight weeks at a time, and the various jobs and locations. The period of time concerned runs between 18 May 2005 and 30 September 2009, since when he has done no further work for Oceaneering.

A pattern of working appears from this table, involving some weeks on and some days or weeks off in between jobs. The Respondent states that he gradually became unhappy about working offshore and so far from home in this way, and that there were periods when he became depressed again and unable to work. In his third affidavit, in response to questions asked by the Applicant, the Respondent states in addition that his mood swings were such that he would often change his mind at last minute, as to whether to work on these or other projects. He refers in this respect to the following: (i) his decision to get off the plane at the last minute at Edinburgh on 19 August 2006, after flight checks for a flight to Luanda, Angola, because he was having a panic attack; (ii) his failure to take the later flight booked for him on 28th August 2006, due to feeling unwell, leaving eventually on 31 August; and (iii) his decision not to go through with an offer of employment with an organisation called Subsea 7, to commence on 1 January 2007, shortly after signing the contract on 4 January 2007.

A copy of the signed contract with Subsea has been disclosed, together with the Respondent’s P45, showing that he did not in fact work for them at any stage. The travel documents show that flight details for a flight to Luanda on 19 August 2006 were emailed to the Respondent and two other men on 17 August; that further, revised flight details for Luanda were then emailed to the Respondent alone on 27 August; and that a flight for him to Luanda was eventually revised and confirmed for 31 August. He was told, in the email of that date, to make sure that he made this flight, because his visa ran out on 1 September. I find on the evidence that these last minute changes did in fact occur in the way the Respondent describes.

In the result, as the table shows, the Respondent did not carry out any work at all for Oceaneering during the month of August 2006 due, he states, to his ill health and depression. Whilst he was not working for Oceaneering he did various, small jobs of work for his father in his motorbike business. From 1 September to 14 October 2006, however, he went back to work on the project in Angola.

There is no dispute as to the earnings that the Respondent received for the Oceaneering work, which were greater than those he had received in his previous job with Global Marine. It is unnecessary for me to refer to any of the figures.

Subsequently, between 11 December 2007 and 1 July 2008, the table shows that the Respondent did no offshore work at all for Oceaneering, for a period of approximately seven months. His case is that this was a period of time when he was, once again, extremely unwell and suffering from depression. He states that he was also drinking heavily at this time, sometimes in excess of one litre of spirits per day, and that he did not seek medical help, as he now accepts he should have done. There is therefore no medical evidence to support his claim that he was not working at this time because he was too unwell, although there is evidence in the medical reports of general, psychological symptomatology following the accident, to which I have referred above.

There is, on the other hand, no evidence to show that he was in fact working elsewhere for any other company at this time. After considering the further disclosure and carrying out a thorough examination of the Respondent’s bank statements, the Applicant no longer pursues the suggestion that he was in paid employment during this period. I find on the evidence that he was not working for these seven months because he was unwell.

Some further evidence, as to what happened towards the end of this seven month period, emerged during the hearing on 15 March. Whilst being cross-examined by Mr Featherby as to how it was that he was able to return to work on 1 July 2008, the Respondent referred to having to go through a disciplinary hearing with Oceaneering about one month earlier, because of his failure to maintain contact with them and respond to requests for him to work. Initially, Mr Featherby challenged this account as a complete fabrication, suggesting that there was no document in any of the bundles to support it. The Respondent’s response in the witness box, that he recalled seeing a document about this in the bundles, was not accepted until a careful re-examination of Bundle 2 revealed a letter to this effect dated 19 June 2008 (at page 733) which Mr Featherby fairly accepted.

On that date Oceaneering wrote to the Respondent requiring him to attend a disciplinary investigation meeting on 24 June to investigate the reasons for his failure to communicate with the office regarding his availability to work. The Respondent’s evidence, which I accept, is that at this hearing, conducted via a telephone conference call, he raised his concerns about having to work on projects so far from home and they agreed to accommodate him. Thereafter, and as the table shows, between 1 September 2008 and 30 September 2009, when the Respondent worked for Oceaneering he worked, save for two spells in Korea, only off the Scottish coast.

The Applicant’s case in these committal proceedings is that the Respondent disclosed limited information concerning his employment with Oceaneering, in an attempt to conceal both the fact that he was working offshore and the earnings that he was receiving. In particular, it is alleged that he told people that he had ceased this work altogether in August 2006, after which there was, by November 2006 at the latest, a sustained, deliberate and dishonest effort to conceal any details of this work. The evidence relating to each of the charges in the 23 counts is alleged to show a deliberate attempt to present a false claim and that the Respondent is therefore in contempt of court.

For convenience I shall deal chronologically with the various events and set out my conclusion in respect of each allegation, but I emphasise that I have considered the totality of the allegations and evidence, including the further evidence adduced at the recent hearing, before arriving at my conclusions on the individual counts. Mr Featherby refers to the mutually corroborative nature of these allegations and suggests that the multiplicity of instances of dishonesty points away from any innocent explanation. He has referred to several “smoking guns” which are said to establish, unequivocally, dishonest attempts by the Respondent, in collusion with his father, to mask his true activities and earnings.

Mr Cousins submits that the sheer quantity of the allegations, after several trawls through the extensive case papers, does not enhance the quality of any; and that I cannot be sure on all the evidence that this Respondent was engaged in a dishonest enterprise. He suggests that much of the further material is helpful to his case rather than the reverse; and that the evidence shows that the problems which arose here really began when Digby Brown handed over the conduct of the Respondent’s claim to OMM. Whilst, as the Respondent now accepts, he should have been more responsible and “hands-on” in his approach to this litigation, the evidence does not prove to the required, criminal standard that he acted with dishonest intent to pursue a false claim.

I shall not refer to every point that has been made on the evidence, but I have had careful regard to all the evidence before me and to the helpful submissions from both counsel in coming to my conclusions. I have not found this an easy case.

When the Respondent first started working for Oceaneering in 2005 the solicitors, Digby Brown, were still acting for him in respect of his personal injury claim. Between April 2005 and August 2006 they saw him on several occasions and took three statements (precognitions) from him, in which I find that he was entirely open about this employment. It appears that these statements were not disclosed to the Applicant until after these contempt proceedings were commenced, but there is nothing to indicate that the Respondent himself was aware of that.

In the first, brief statement, taken on 26 April 2005, the Respondent referred in general terms to being “keen to get back into the labour market”; to having applied to see if there was anything offshore that he could do; and to the possibility of applying for local jobs or studying for further engineering qualifications. He referred also to suffering from flashbacks and panic attacks.

In the second, much more detailed statement taken almost a year later, on 24 April 2006, by which time the Respondent had already carried out seven offshore jobs for Oceaneering, he said as follows:

“… in May of last year I did take up contract work and I have been undertaking this contract work off and on ever since. The company I am doing contract work with is called Oceaneering which is based in Aberdeen. I had to pass a medical to get the job … The job that I am doing for Oceaneering is very well paid. I get paid on a day rate basis. This means that I only get paid when I work, but I do get paid £267 per day. The job involves working off shore. Although it is not a physically demanding job, I am finding it difficult to undertake mentally. I find it very tiring. I am constantly conscious of my health all the time. I am earning good money but I do not think I will be able to continue this job for much longer. Because of my health worries, I keep worrying that if something were to happen to me whilst I am offshore, such as a problem with my heart, that they would not be able to get me home quickly enough. I should explain that I started working this job in May of last year only working two weeks on and then a month off. I am now doing longer trips, for instance, four weeks on and then four to six weeks off. The job I am doing is the job of a submersible engineer. What I do is operate the remotely operated vehicles under water. These are known as ‘ROVs’. You undertake the work from a rig or a barge or a boat. It is similar to operating a remote control plane. This particular job was part of my job before, which I was doing when I had my accident. However, it was only one task which I had to perform. It is obviously a task which I can perform without too much strenuous exercise so from that point of view it suits me. However, the strain of being offshore is really too much for me and I do not think I will be able to hold down this job for much longer.

At the moment the good thing about it is I can pick and choose when I want to work. It is a matter of just standing by the ‘phone and being offered a job. I think I could get more work if I wanted to but I am being a bit choosy. If it is a really difficult and time consuming job I am turning it down. However, if it is just a quick survey then I will do it.

I do not see myself doing this sort of work long-term and ideally I would like to go back to college and retrain in shore work instead of offshore work. I would like to remain in this sort of industry.”

In his third statement, taken almost six months later and typed on 9 August 2006, he commented further on his employment history and earnings before Oceaneering, and he added this:

“I went to work in the middle of last year, I have been doing a fair amount of contracting work. I am taking a break from the contracting work at present because I am finding it physically very demanding. Recently I have been working in my father’s shop. He has a motorbike shop from his garage at his home. He has given me a wage, although it is really just a matter of being paid cash in hand and nothing has been formalised as yet.”

By this stage, the Respondent had been seen by a number of medical experts in connection with his personal injury claim. References, in the reports of some of them, to the Respondent’s employment form the subject of Counts 1 to 4 in the Schedule. Mr Featherby submits that these reports have a “special status” by virtue of their incorporation into the Particulars of Claim, verified by a statement of truth. However, none of them satisfies me to the required standard that false statements were knowingly and deliberately made by the Respondent, in order to advance or further a dishonest claim.

I have of course considered each allegation separately. However, forensic experience in this field teaches that busy doctors, instructed by both sides, can sometimes misinterpret things said or summarise them inaccurately in their reports, and I consider these allegations with that in mind.

Mr Zamvar, consultant cardiothoracic surgeon, examined the Respondent on 17 June 2005 and provided a report dated 26 June 2005. The Applicant alleges in Count 1 that the Respondent told Mr Zamvar that he had not yet been able to go back to work; that this was a false statement; and that the Respondent made it without an honest belief in its truth.

I am not persuaded that Mr Zamvar’s report provides reliable evidence of a deliberate, false statement by the Respondent. Firstly, by this stage, according to the agreed table, the Respondent had worked on only one two-week project for Oceaneering in the North Sea, in May 2005, and no other work had yet been offered to him. His next project was 1-15 July, in the North Sea. Secondly, the main thrust of Mr Zamvar’s report was the Respondent’s physical injuries, in particular the injury to his heart, and his progress to date. On review, on 17 June, the Respondent was noted to be complaining of tiredness and back pain. Mr Zamvar noted merely “He had not joined back work (sic). He wanted to get this episode behind him and start some kind of work”. This appears consistent with what he had said in his first precognition and with the Respondent’s recollection that he told Mr Zamvar he had not yet been able to go back to his previous physical work. Under skilful cross-examination by Mr Featherby the Respondent accepted that you could read this reference as an inaccurate statement of his current situation, but the doctor’s brief summary is equally consistent with the Respondent’s case that he felt unable to return to the work that he had been doing previously and was endeavouring to explain this.

Count 2 similarly alleges that the Respondent made a false statement to Professor Court-Brown, Professor of Orthopaedic Trauma, on 12 September 2005, which appears in his report of 27 September 2005. Professor Court-Brown states as follows, in relation to the Respondent’s employment:

“Mr Montgomery worked as a systems technician. He worked off shore in boats. This is a manual job and he has never returned to it. Mr Montgomery has however returned to work and he started a contract job with an off shore company in June 2005. This was an office job which is now finished because the contract has finished. He is currently unemployed.”

Since the next offshore project did not start until 23 September, and there is no evidence that the Respondent knew about it on 12^th, which he denies, this seems to me to be a reasonably accurate summary of the position as at that date. The Respondent had been doing essentially administrative or non-manual work for Oceaneering at this stage. Further, the most recent contract had ended on 11 September 2005 and the Respondent states that he did not know when or if any further work would be available. Even if, as it appears, he remained on Oceaneering’s books, that is the nature of contracted employment of that kind.

Mr Featherby submits that to refer to being “unemployed” conveys a state of affairs quite different from that which was in fact the case. However, this may have been the doctor’s own interpretation of what the Respondent was saying, rather than a term used by the Respondent himself. A statement that someone is “not working at present” can reasonably be interpreted, or committed to writing, as being “currently unemployed”. Even if he did use it, and the Respondent cannot now remember, he was telling the doctor that he had “returned to work”, not attempting to conceal it, and I am not satisfied that it signifies a dishonest attempt to mislead or deceive in the circumstances.

Some further support for this conclusion is to be found in the correspondence between the Respondent and Innes Laing of Digby Brown solicitors. At about the time his first precognition was taken Mr Laing wrote to him on 26 April 2005, asking him amongst other things “…can you keep me appraised as to your future career prospects. Please let me know if you have any success in obtaining work…” In an email from the Respondent, dated 25 June 2005, he told Mr Laing “…I have an opportunity to take work. Unfortunately it is offshore which means that I cannot attend the tribunal [an appeal in respect of benefits] on Wednesday… this job has come just at the wrong time, but I have no other alternative than to take it”. It appears from the agreed table that this job, on 24 June, was cancelled in the event and the Respondent emailed Mr Laing on 27 June to tell him this.

On 13 September 2005, the Respondent telephoned Mr Laing and the attendance note includes the following:

“I then asked him if he was interested in an interim payment of £4000…….He had asked earlier for an interim payment and I had managed to secure one for him. His position is a bit more stable now. He has got a job working part-time in an off-shore company in their office. He doesn’t need the money at present and, therefore, doesn’t want to accept it.”

Another, brief attendance note of a call from the Respondent on 10 October 2005 refers to him getting some “temp agency work” and to Mr Laing’s advice to him to “keep his wage slips”.

Mr Featherby submits that these were false statements about his work, which was in reality a full-time job on an oil rig, and he advances them as examples of smoking guns in this case. I reject this submission. The ad hoc and intermittent nature of contracted work of this kind does not render false a description of it as “part-time” or “agency” work. In any event the important point that emerges from these communications is that the Respondent was keeping his solicitor informed as to the fact of this work, and of earnings from it, of which he subsequently gave a more detailed account in his second precognition of 24 April 2006.

Mr Featherby made a further point in connection with Professor Court-Brown’s report. He suggested that the Respondent had made up an account that he had had to give up playing football, also referred to in the report, in order to portray himself as incapable of work. The Respondent states that this must simply be an error, because he has never played and does not even watch football. I do not consider that this helps me, or advances the Applicant’s case. Since the Respondent admits that he had, in fact, stopped playing rugby football this is more likely to be a misunderstanding. I note that the orthopaedic expert Mr MacKay referred in his report to the Respondent giving up “rugby, football”, which lends support to this view.

Count 3 alleges a further false or intentionally misleading statement by the Respondent to Mr Zamvar, when he reviewed the Respondent on 3 August 2006. In a short letter typed on 2 October 2006 Mr Zamvar refers simply to the fact that the Respondent told him “he had joined his father’s business running a motorbike shop and said that he enjoyed his work and had no complaints”.

Mr Featherby submits that the new disclosure shows that, on 3 August 2006, the Respondent opened an offshore bank account in the Isle of Man to receive payments from Oceaneering. He must therefore have been expecting that there would be more work for him with that company and his statement to Mr Zamvar was therefore dishonest. Moreover, he had only been back from Luanda for eight days by then and was sent the travel arrangements for a further trip out there a fortnight later, on 17 August.

The Respondent does not dispute that he opened this bank account, for which I accept the request to the bank was probably made a month or so before it actually opened on 3 August, or that he anticipated that there might be more work in the future with Oceaneering. He cannot recall exactly what he said to Mr Zamvar, but he denies that he was dishonestly seeking to conceal this work.

I am not satisfied on the evidence that he was. By this time he had provided full details of his work and earnings with Oceaneering to his solicitors in his second precognition. Further, as I have already found, he did not work for them at all in August 2006, leaving the plane after a panic attack on 19th and not going out to Luanda again until 31 August. He had also explained in his third precognition, taken in early August 2006, that he was taking a break at present and helping his father in his motorbike business. The statement noted by Mr Zamvar therefore appears accurately to reflect the Respondent’s activity at that stage. Certainly the Respondent did not suggest that he was never going to go back to working offshore.

There is in my view further, compelling evidence in this case in support of my conclusion that the Respondent was not acting dishonestly in relation to his employment with Oceaneering at this time. By mid-June 2006 Digby Brown had obtained the Respondent’s pay and tax details for the years 2000/2005 from HMRC. On 15 June 2006 the Applicant’s insurers, Churchill, wrote to Oceaneering asking for sight of their “complete file” of employment records for the Respondent and enclosing a signed authorisation for them to do so. The Respondent had signed this on 1 June 2006 at the request of his solicitors. In it he expressly authorised the Inland Revenue, the DSS and his last three employers to supply Churchill with “such information, documentation or reports as may be required in connection with my claim for compensation”. He had named Oceaneering as his most recent employer. It is not in dispute therefore that the Applicant’s insurers were themselves aware, as early as June 2006, and from information that the Respondent had himself given to them, that he was working for Oceaneering, and that he had expressly authorised the insurers to obtain details of that employment. That is evidence to which I shall return later on in this judgment. There is no evidence before me that Churchill in fact sought information from Oceaneering until 2008, in the run up to the trial fixed for 13 November.

Count 4 charges the Respondent with making a false statement to Dr Carson on about 27 November 2006. The particulars relied on as false are set out at page 4 of his report as follows:

“He told me his father had started his own business and Mr Montgomery got involved in it. He told me it was helping him out. He told me he also started to get some agency work on an off shore basis as an ROV technician. He told me this was a similar role to one he had had before. He told me that he threw himself into it trying to get some money together. He found it very difficult at first. In particular the social interactions and travel were tricky. On further examination he did not report any specific phobia of being in a vehicle but rather a dislike of being away from home. Since that time he has helped his father with his business and he has been having the occasional trip off shore. For example this year he had had three trips, two of two weeks and one of four weeks. He told me he felt he could not manage full-time as the total amount of excursion required would just be too much of a strain on him and on his back. He said however he felt a major factor was that he just didn’t like being away from home. He told me he feels there is a fear of being away from his family and friends. He did acknowledge there was something of a paradox in this as he had in fact fallen out with them all.”

By this stage the Respondent had worked for Oceaneering for five separate periods, totalling approximately 20 weeks, during the year 2006. This would not equate to full-time work. I am not persuaded that this information was false, or that it was said deliberately to deceive Dr Carson as to the true position. On the contrary, it seems consistent with the Respondent being open about his work for Oceaneering and about the nature of that work. Although the position summarised by Dr Carson is not entirely clear, his understanding seems to be that the Respondent reported both helping his father and taking the occasional trip offshore for Oceaneering. This seems to me to be consistent both with the Respondent’s account and with the agreed table. In any event the Respondent had already authorised the Applicant’s insurers to approach Oceaneering to obtain all his employment and earnings details directly.

The further disclosure also shows that, on 31 October 2006, when the Respondent telephoned Innes Laing to confirm the appointment with Dr Carson on 27 November, he also told him that he had “been away contracting for six weeks” and that it was only meant to be one week but had been extended.

Another important development occurred in this case on 20 November 2006, before the appointment with Dr Carson, namely transfer of the conduct of the claim to OMM. A meeting for this purpose was held at Digby Brown’s offices on that date.

The communications between the Respondent and Digby Brown show that, over the months leading up to this date, Mr Laing had been advising the Respondent that it would be necessary to transfer the conduct of his claim to a firm of English solicitors to enable the issue of proceedings, the accident having happened in Dorset. That firm was identified in correspondence, as early as 29 November 2005, as OMM, who were based in Leighton Buzzard. Tom Osborne of that firm was said to have discussed informally with Mr Laing the offer of settlement on liability at 75/25% and to agree with his recommendation that the Respondent accept Churchill’s offer on that basis, which he did.

Churchill had then made a Part 36 offer of £85,000 gross of CRU in settlement, following that compromise on liability. On 24 April 2006, Mr Laing wrote to the Respondent telling him that he had responded to that offer on the basis that, pending receipt of all the medical reports being sought, they were simply not in a position to accept or reject the offer at that time, though they were minded to reject it. It was at that point that Churchill wrote, asking for details of all the Respondent’s earnings in employment since the accident, and the mandate was then signed by the Respondent on 1 June.

Although the Respondent’s evidence as to a “handover” meeting on 20 November 2006 was initially challenged by Mr Featherby, a copy of an email produced by the Respondent, during the hearing in April 2010, confirmed his evidence that an introductory meeting was arranged at Digby Brown’s Edinburgh offices, on 20 November 2006, to enable the Respondent to meet the partner from OMM who would be taking over the case. We now have the attendance note of that meeting, which shows that it was attended by Mr Laing, the Respondent and Tom Osborne of OMM, not Tim Woolford as the Respondent originally thought.

The Respondent’s recollection was that this was a short meeting, lasting only a few minutes, during which no details were discussed; and that Mr Osborne confirmed only that he had been briefed by Digby Brown and was “aware of the Respondent’s current position”. It appears from the note that the total length of this meeting was one hour, although clearly the Respondent was not himself present for the first part of that meeting, Mr Laing initially discussing the history of the claim with Mr Osborne, without the Respondent being present.

At this meeting, the Respondent described his current health and level of recovery and then referred to his work situation, as follows:

“He confirmed that he was still doing small contract jobs offshore but he doesn’t enjoy it. He finds it very hard. He can’t see himself keeping it up. He still gets a lot of pain in his back. The money is more or less the same as what he was on before the accident. He has not been offered a full-time job and this really he is lucky because of the boom in the oil and gas industry that there are these jobs about at the moment.”

The Respondent then referred to still hoping to go back to college to get a degree. At the conclusion of the meeting, Mr Osborne noted that, once proceedings had been raised, they could then have a meeting with Churchill to discuss settlement of the claim. It was also noted that the claim would become time-barred in February 2007.

Mr Featherby suggested that the Respondent deliberately misled Mr Osborne into believing that his employment had been “small contract jobs offshore”, but I reject that suggestion. The significant point seems to me that, at this meeting, there was no attempt by the Respondent to conceal this work. On the contrary, the Respondent expressly told Mr Osborne that he was still doing offshore work. OMM were therefore on notice of that fact.

In relation to events in 2006, the allegations made in Counts 1 – 4, and the credibility of the Respondent’s account generally, Mr Featherby now places considerable reliance on some disclosed communications between the Respondent, his father and Digby Brown, in April and then again in September/October 2006.

On 5 April 2006, when the Respondent was working on an offshore project in Equatorial Guinea, an attendance note of that date shows that Innes Laing telephoned him at his father’s home, to talk to him about the Part 36 offer, and that he was told by his father that the Respondent was “currently away in Spain with his sister, having a break”. Ian Montgomery said that he has no recollection of saying this and was unable to assist me as to why this was in the note. I am satisfied, however, that Ian Montgomery said this and Mr Cousins, realistically, did not argue to the contrary. It was clearly incorrect. Mr Featherby submits that this is clear evidence of dishonest collusion between both men, the Respondent’s father lying about his son’s work in order to mislead the solicitors as to both the fact of this work and the earnings from it.

The Respondent denies that he told his father either that he was away in Spain, or that he was working in Equatorial Guinea. He can offer no explanation why his father would have said this to Mr Laing. Mr Featherby submits that it is inconceivable that his father would not know where his son was, given the Respondent’s own evidence that his father always, or almost always, took him to the airport. The Respondent says that his father would usually just drop him off with his bags, and that they did not always discuss where he was going and what he was doing. Further, he states that he tended not to tell his mother that he was working in “unstable” areas in Africa or Equatorial Guinea, because he knew that she would worry about him. He would simply tell her that he was flying to Spain or Portugal.

The matter does not end there however. Shortly after this conversation with the father, Mr Laing emailed the Respondent on his hotmail address, asking to speak to him urgently and stating that he understood he was away in Spain. An attendance note dated 11 April 2006 records a telephone call with the Respondent himself in response to this email. The note of this conversation records, amongst other things, Mr Laing’s irritation at having to “chase” the Respondent about the offer; advice that the offer had to be taken seriously and that the Respondent had a duty to mitigate his loss, respond to queries and “show a court that he is looking to get back into the labour market as soon as possible”; and the Respondent’s statement that he had been unable to open the letter from Churchill because it was in the wrong format.

However, the significance of the letter, so far as the Applicant is concerned, is that it starts with the words “IL attending at telephone conversation with Bruce Montgomery. He is still in Spain. He has been in Spain for several weeks on holiday and does not intend to return until the end of the month.” The Respondent denies that he told Mr Laing that he was in Spain, or on holiday, but agrees that he did tell him that he was still away, had been away for several weeks, and would not be returning until the end of the month, which was in fact the case. He therefore suggests that this must be a misunderstanding on the part of Mr Laing.

Further, incorrect information as to the Respondent’s whereabouts was given to Mr Laing when he spoke on the telephone once again to the Respondent’s father later on that year, on 20 September. On this occasion the attendance note records his father as saying that his son was “working offshore off the coast of Norway. Has been for a few weeks. He will be back in a couple of weeks.” At this time the Respondent was in fact working in Angola, where he had eventually flown on 31 August. He does not know why his father would say Norway, although he had in fact previously worked off the Norwegian coast. Ian Montgomery has no recollection of this conversation or what he knew of his son’s whereabouts at this time.

Mr Featherby submits that this is further evidence of dishonest collusion, in particular since the Respondent did not then correct this false impression after Mr Laing wrote to his home address on 3 October, referring to his understanding that the Respondent was “currently out of the country working off-shore off the coast of Norway.” The Respondent accepts that on his return, on 14 October, he did not write to correct this, but he did telephone Mr Laing on 31 October, as the attendance note of that date confirms, and explained to him that he had “been away contracting for six weeks. Was only meant to be one but it was extended.” This was in fact correct, because the Respondent had been away working from 1 September to 14 October.

I have considered the evidence relating to these communications with care, but I am not satisfied, having regard to the evidence as a whole, that they show deliberate dishonesty on the part of the Respondent or collusion, with his father, to tell lies to his solicitor. In my view the evidence does not support an allegation that the Respondent concealed the fact of that work, and of his earnings from it, with a view to securing some financial gain, or that he dishonestly misled his solicitors, the Applicant and the Court.

First, in his second precognition, dated 24 April 2006 and therefore made a few days after his return from abroad, the Respondent gave his solicitors full details of his work for Oceaneering, and of his daily rate of pay. Secondly, just five weeks later he had signed a mandate for Churchill, disclosing the fact of this employment and authorising them to obtain all the details relating to it. Thirdly, in September, whilst Ian Montgomery referred, incorrectly, to his son being in Norway, he did truthfully state that his son was working offshore at that time. I reject as fanciful Mr Featherby’s suggestion that this might have been in order to conceal the Respondent’s ability to work in more dangerous areas further away. This seems to me to be clutching at straws. Fourthly, at the handover meeting with OMM on 20 November 2006 the Respondent told Mr Osborne that he was still working on contract jobs offshore. Further, as Mr Cousins points out, in the main Schedule of Loss dated 16 June 2008, no claim for loss of earnings was in fact made for the period 22 May 2005 to 31 July 2006, the stated reason being that his earnings from Oceaneering were greater than those he would have received in his previous employment. Whilst there are other difficulties with this document, to which I shall turn later on, all this evidence points away from a dishonest intention by the Respondent to conceal this work and to tell lies about it to his solicitor during 2006.

In the light of all this I consider it more likely that there was a misunderstanding by Mr Laing as to the correct position, when he spoke on the telephone to the Respondent on 11 April. There would be no dishonest purpose to be served by the Respondent stating that he was in Spain or away on holiday when other, contemporaneous or near-contemporaneous documents show that he was being entirely open and honest about this employment, and no income from it was being hidden. I am not satisfied that he said this. Mr Laing no doubt went into this conversation with the information he had been given by Ian Montgomery in his mind. The Respondent’s confirmation that he was “still away” and “not returning until the end of the month” was then simply misinterpreted as a reference to him returning from Spain.

Nor am I satisfied that the Respondent told his father to lie about his whereabouts, or to refer to his being either in Spain or Norway. It is unclear why Ian Montgomery said this, or what exactly he did say, since I am entirely dependent upon the contents of brief attendance notes for these conversations, but I am not persuaded that it was said pursuant to a dishonest enterprise, of which this Respondent was a part. In his closing submissions Mr Cousins referred to the Respondent’s father as a somewhat truculent and uncooperative individual and, having now had the opportunity to consider his evidence on two separate occasions, I regard this as an accurate assessment.

These counts relate to alleged, false details set out in the Particulars of Claim and in the preliminary Schedule of Loss, both drafted by OMM and served on the Respondent’s behalf.

At the end of 2006 Digby Brown handed over conduct of the Respondent’s claim to OMM. Mr Featherby submits that, from this time onwards, the evidence shows that the Respondent deliberately and dishonestly concealed from OMM, and from experts instructed in the case, both the fact of his offshore work with Oceaneering and the earnings from it, and that he did this in order to pursue a false claim. Mr Cousins submits that what happened after November 2006 reflects, rather, a complete breakdown in communication between the Respondent and OMM. This, he submits, was due to a combination of factors, including clear failings by the Respondent himself, in not dealing properly with documentation sent to him; his prolonged illness in 2007/2008; failings by OMM in dealing properly with matters on his behalf; and, most importantly, the fact that, after that initial handover meeting in November 2006, no further meeting ever took place between the Respondent and his solicitor. In fact the only face to face meeting was not with his solicitor but with an agent instructed to take his witness statement, some 19 months later on 4 June 2008. There was therefore an absence of any “hands-on” discussion for a lengthy period of time, which caused or significantly contributed to the problems that have occurred in this case.

No criticism is made of the work that Digby Brown had done to date. This was, for the Respondent, a local firm. The documents now available confirm that he had seen Mr Laing on a number of occasions, and that there was regular communication between them. Precognitions had been prepared and relevant material assembled. As set out above, specific reference was made in the precognitions to the fact that the Respondent had worked for Oceaneering on and off since May 2005, and the Respondent had provided written authorisation to enable Churchill to obtain all his employment records.

By this stage, as the second precognition makes clear, Churchill had already made a Part 36 offer to settle the claim for £85,000, which the Respondent considered, on advice, to be inadequate. At the meeting in Edinburgh Mr Osborne anticipated a meeting with Churchill to discuss settlement once proceedings were under way, and he informed the Respondent of this. He was himself aware, from what the Respondent told him at this meeting, that the Respondent was still working on offshore jobs at this time.

Following the further disclosure it now appears that there is before me all the available documentary material from OMM’s files, relating to contact between the Respondent and OMM. I emphasise that I am concerned in this case solely with the issues arising between these two parties. I therefore make no findings which would bind OMM, who have taken no part in these proceedings.

The Respondent’s case is that, save for that short, introductory meeting in Edinburgh on 20 November 2006, he did not at any point have any further meeting with Tom Osborne or anyone else at or on behalf of OMM until June 2008, despite assurances that such a meeting would be arranged. It is also his case that OMM made no enquiries with Oceaneering about his employment and earnings at any time before late 2008 and that they, and others, proceeded on an entirely incorrect understanding of his employment situation. He acknowledges that he is partly to blame for that misunderstanding, but he denies that he was ever acting dishonestly. Mr Featherby contends that the fact that no meeting ever took place was due to the Respondent repeatedly “stonewalling” and avoiding such a meeting. Further, the understanding of OMM, and of medical and employment experts, as to his employment situation was caused by the Respondent’s dishonesty in deliberately concealing from them the truth about his work and remuneration.

In considering these competing submissions I have therefore examined all the evidence now available with some care.

In fact the solicitor at OMM who had conduct of the case was not Tom Osborne but Tim Woolford, who wrote to introduce himself to the Respondent on 22 January 2007. The three-year limitation period for issuing proceedings was now almost at an end. In this letter Mr Woolford explained that it was necessary for him to issue court proceedings in England before the date of the third anniversary of the accident; and that he would do so in the week beginning 5 February. A conditional fee agreement was enclosed, which the Respondent, although having no recollection of doing so, must have signed and returned, together with the signed letter of instruction containing the necessary formalities as to the retainer.

In the penultimate paragraph Mr Woolford said this:

“Once proceedings are issued I think it would be sensible for me to travel up to Scotland to see you to discuss the best way in which your claim can be progressed.”

OMM were based in Leighton Buzzard. The Respondent was still living on his own in Fife.

There is no attendance note, letter or email recording any meeting, or any further telephone or email contact, before the proceedings were in fact issued on 16 February 2007. By letter to the Respondent of the same date Mr Woolford said as follows:

“I confirm I have issued proceedings in your claim to protect your position on limitation. I will now be reviewing the paperwork and referring matters to Counsel to draft the Court document known as the Particulars of Claim. As part of that process I will also be reviewing the medical evidence and also other aspects of your case and then be in touch in due course to discuss in more detail how matters will progress in your case.

I think it would also be sensible for us to meet in the near future and I will, of course, travel to Scotland for your convenience.”

There is nothing on the file to indicate either a meeting or telephone discussions with the Respondent between the date of this letter and the letter subsequently written on 26 April 2007, following email confirmation by the Respondent of the figures in the CRU certificate. Mr Woolford there repeated his intention to have a meeting with the Respondent, stating:

“I confirm I have issued proceedings in your case although I am currently awaiting a document being the Particulars of Claim to be amended and clarified following a short advice from the Consultant Cardiothoracic Surgeon who reported previously. I hope to receive the document shortly and once that is available I intend to travel up to see you so we can talk about how your case will progress.”

There is, however, no attendance note or other document to contradict the Respondent’s evidence that no meeting ever took place, and that no attempt was made by Mr Woolford to arrange one, before the pleadings were served. There is nothing to suggest that the Respondent was seeking to avoid such a meeting or to put Mr Woolford off in some way.

The next document in time is a file note or internal memorandum made by Mr Woolford, dated 12 June 2007. This was shortly before the four-month deadline for service of the Claim and supporting documents. This note makes no reference to a meeting with the Respondent or to any unsuccessful attempts to meet him. Nor does it refer to any instructions that he had sought from the Respondent, or that the Respondent had provided, in relation to the contents of the Particulars or the Schedule.

This file note and the five pages of hand-written notes which follow it show, in my view, that at this point the solicitor was reviewing the file, was aware of the need to serve the particularised claim within a few days and was now acting in some haste in order to comply with the procedural requirements.

Mr Featherby suggested in cross-examination that the information contained in these notes must have come from the Respondent personally. That suggestion is disputed and I reject it. In my view, the contents of both the file note on its face, and of the hand-written notes accompanying it, strongly suggest that all the information came from the documents already on the file transferred from Digby Brown. They suggest, further, that nothing had been done in the four months since issue to update that information, or to check the current position with the Respondent, since the last precognition taken from him in September 2006.

So far as is relevant, the file note reads as follows:

“Reviewing the Schedule of Damage. We have very little information to work on. I am concerned that given the fact that we are serving outside limitation within the 4 month period that the Schedule is as detailed as we can make it. We have received virtually nothing from Digby Brown who have been concentrating on liability and contributory negligence issues and of course since receiving the paperwork it has been necessary for us to look at the issue of the Claim Form and also dealing with the point as far as the Cardiac Surgeon is concerned.

I have read all of the medical evidence again and also precognitions that Digby Brown have taken. There is also some documentation from the Inland Revenue and also from Bruce’s previous employers. From that I have constructed a Schedule dealing with past and future loss of earnings and gratuitous care. I have lifted figures from other reports and made estimates in respect of time spent by the family but have pointed out that this will need to be amended upon receipt of further expert or other medical evidence.”

The time noted as spent on the file (4 hours 18 minutes) seems to me to be entirely consistent with a reading of the various documents and reports obtained to date, and the lifting of details and figures from them in order to “construct” a schedule of damage, with provisional calculations of loss under the various heads of claim. Significantly, the notes relating to the Respondent’s employment end in 2006, with references to him working in his father’s motorcycle shop, as he had been doing in August, before going out to Angola again at the end of that month. The notes record nothing of events since then.

The fact that the material referred to by Mr Woolford was now out of date is evidenced by the table of offshore jobs which the Respondent had undertaken for Oceaneering since the end of 2006. He had worked on a number of projects during the following periods:

The Respondent had therefore been working in Malaysia for some seven weeks since 24 April, at the time that Mr Woolford was constructing the schedule on his behalf. He was still doing so on the following day, 13 June 2007, when the proceedings were served on the Applicant’s solicitors. Mr Woolford also wrote to the Respondent on 13 June, informing him that he had served the proceedings and enclosing a copy “for your information”. There is no attendance note or any other document evidencing any telephone or email contact between the Respondent and Mr Woolford before that date, and no letter enclosing any draft of the documents he intended to serve, asking the Respondent to read and approve them.

It therefore appears that Mr Woolford was himself unaware, at this stage, of the fact that the Respondent was continuing to work from time to time for Oceaneering. The Respondent’s case is that he believed that OMM had all the evidence that Digby Brown had, and that his periods of work for Oceaneering were known to them, in particular since he had signed an earlier authorisation to enable his employment records with Oceaneering to be disclosed, and had told Tom Osborne at the handover that he was still working offshore.

On all the material before me I am not satisfied that the Respondent expressly authorised Mr Woolford to sign the statement of truth in the Particulars of Claim on his behalf, or that Mr Woolford ever explained to him the effect of such a statement of truth, and of the consequences for him if the document contained any information which was untrue. The evidence before me suggests, rather, that the Particulars of Claim were prepared by OMM without reference to the Respondent and towards the end of the 4 month period for service; that they were served without having been approved; and that the statement of truth was signed by OMM when there had been no compliance with the requirements of CPR Part 22.

I arrive at the same conclusions in respect of the first, “preliminary” Schedule of Loss which accompanied the Particulars. Although stating in that Schedule that the Respondent’s file had only recently been passed to OMM, to enable proceedings to be issued in the jurisdiction, and that outstanding information was required to “refine the figures”, OMM had in fact had four months since issue in which to clarify and update the position, and to obtain any missing documentation. The precognitions already contained relevant details upon which to build and, in my view, merited further enquiry.

At the first hearing of this application, in April 2010, there appeared to be no documentation showing that OMM were making any of the usual inquiries as to employment, earnings and benefits. The absence of such inquiries, to be expected in litigation of this kind, was the subject of comment in the draft judgment. It was clear that such information as there was in the Schedule had come from the work, pay and tax information which had so far been obtained by Digby Brown. There was no evidence to show that OMM undertook any further inquiries of their own, or sought further authorisation from the Respondent to enable them to pursue any inquiries not yet made.

With the advantage of the further disclosure I have looked at this again. Mr Featherby submits that the new disclosure reveals that OMM were making inquiries with the Respondent as to his employment details, in June and July 2007, and that they were seeking meetings with him to clarify matters, but that he was repeatedly putting them off. Mr Cousins submits that the correspondence, running from July 2007 through to October 2008, confirms that OMM made no enquiries at all of any third parties as to his employment, earnings and benefits; and that, although the Respondent is to be blamed for failing to read documents and to act responsibly in respect of his claim, there is nothing to show that he was repeatedly and deliberately avoiding meetings with OMM.

The findings I make in relation to these competing contentions will also be relevant to my conclusions on the other counts, considered below.

On 3 July 2007 Nicolene Davies wrote to the Respondent, introducing herself as the person at OMM who was assisting Tim Woolford in respect of the claim. Whilst awaiting service of the Defence, she told him that the solicitors had sought further details about his employment and she set these enquiries out in the letter. So far as is relevant, information was sought as to his redundancy payment from Global Marine and his earnings from the work with his father. He was asked to let her have any wage slips, P45s or P60s he may hold specifically for the tax years 200/2001 and 2001/2002. He was also asked to “...confirm the nature of the duties you were carrying out whilst working for Oceaneering...They specifically wish you to indicate whether you were doing rig support, diver support or touchstone monitoring. Further they also wish you to indicate the class of ROV including the model and manufacturer of ROV”.

It is not in dispute that the Respondent had not replied to this request before Tim Woolford wrote to him on 18 July, notifying him of another Part 36 offer made by the Defendant on 12 July. This offer, of £150,000 after deduction of 25% for contributory negligence and any interim payments, was described by Mr Woolford as a significant offer, which needed to be carefully considered. He said as follows:

“I think we should meet to go through the offer and I am happy to travel to Scotland to see you. I would suggest some time in the week beginning 13^th August 2007...I would be grateful if you would confirm whether an appointment that week would be convenient...”

Nor is it in dispute that, on this occasion, the Respondent sought to postpone a meeting in the week suggested. In his email in response, sent just after midnight on 25 July, the Respondent said that he was not prepared to accept this offer and pointed out that he had not in fact received any interim payments. Apologising for the “negativity” of his response he then said this:

“I must think of my future long term. I would like to close the door on this but suitable compensation is necessary.

I am still trying to come to terms with my situation. I am still trying to get local employment to keep my head above water but it is proving difficult. I would hopefully like to go to college for 3-4 years and retrain to find suitable non manual employment. I am still fighting depression and most days I am severely exhausted.......Also I have had the insurance company send out bogus workers to my home address spying on my every move. Is this necessary? My medical reports should be enough to show the trauma I went through.

My parents and sister are helping by taking me on holiday in August so I will not be able to attend the meeting on the 13^th of August 2007. Can this be made at the beginning of September?”

Mr Woolford responded sympathetically on the same day, saying he would ask his secretary to send him some other dates.

I will return later on to what actually happened on 25 July, because the Respondent did not in fact go away with his parents, instead agreeing to work offshore for Oceaneering in Equatorial Guinea, where he was between 25 July and 31 August. I am dealing at present with the evidence there is as to meetings proposed between the Respondent and OMM.

Mr Woolford wrote a letter on 29 August, trusting that the Respondent had had “an enjoyable holiday” and asking him to send some dates at the beginning of September, before a case management hearing on his case fixed for 9 October. Mr Woolford then sent a chaser letter on 25 September, no response having been received, asking the Respondent to ring his secretary to arrange an appointment for him to come to Scotland. The Respondent telephoned, as requested, on 2 October, saying that he was “available anytime”. The secretary explained that Mr Woolford was trying to arrange another appointment, with a client who lived in the same area, and that once they’d heard from him she’d be back in touch with the Respondent with a possible date.

OMM had not come back to him with a date before the Respondent agreed to accept a further, Oceaneering posting to Angola in Mid-October 2007, the flight details being sent to him on 11 October and his departure date being 14 October. He remained in Africa for some seven weeks, returning on 30 November, and it was then that he became extremely unwell and did not work again until July 2008.

Whilst he was away no further letter or email was sent from OMM suggesting a meeting date. Cogents, the Applicant’s solicitors, wrote to OMM on 12 November. They had heard from Mr MacKay, their orthopaedic expert, that the Respondent’s father had called him on 9 November to say that his son would be unable to keep the appointment arranged with him for the 10^th because he was in Spain. Cogents asked for confirmation that he would attend a new appointment on 6 December. OMM then wrote a letter to the Respondent on 13 November, whilst he was still in Angola, asking him to explain the difficulties, assuming that he had been on holiday in Spain and asking him to confirm the position.

After his return from Angola the Respondent emailed Mr Woolford on 4 December, confirming that he would keep the appointment with Mr McKay on 6 December, which he did. Other appointments with medical experts were being arranged at this time, including an ENT specialist, Dr Cowan, and Dr El-Assra, consultant psychiatrist. A file note dated 26 November 2007 shows that Helen Thompson of OMM drafted the list of documents for standard disclosure in the case, which was sent to the Respondent by letter dated 3 December. In this letter Mr Woolford simply asked the Respondent to sign and date it and return it to him.

Although there is no document showing it, there must then have been a meeting suggested by OMM, in an email or telephone call on 4 December, because the Respondent emailed Mr Woolford at 16.37 on 4 December saying “Yes the 14^th January would be good for me. I have posted the “Standard of Disclosure form” that arrived this morning. Kind regards, Bruce”. A response from Mr Woolford one hour later reads “Can I come back to you to clarify the date? I am in Newcastle that week and would try to come up to Scotland to see you and then back down to Newcastle. I am in Court though so not quite sure of the day. I will be in touch shortly.” The Respondent replied on 5 December “No problem, I don’t have any plans and will be available in January.”

There is no evidence that OMM ever did get back to the Respondent with a date in January. Correspondence (three separate letters of 10 December) shows OMM confirming receipt of the List of Documents; seeking details from him of the earnings for the work he had done for his father; and notifying the Respondent of the date now fixed for trial, namely three days starting on 23 June 2008.

In a letter dated 17 January 2008 Mr Woolford wrote asking the Respondent to answer a Request for Further Information from the Applicant’s solicitors, as a matter of urgency. These enquiries related to earnings for 2001/2002 and any redundancy payment. There is no suggestion that the Respondent did not accurately and promptly provide the information sought.

By letter dated 6 February 2008 Mr Woolford sent the Respondent a copy of counsel’s advice. This dealt with a number of different aspects of the claim but, at paragraph 7, counsel noted that the Schedule of Loss was now out of date; stated that he was unsure as to the position regarding the current earnings claim; and asked for clarification. All his calculations were said to be based on assumptions as to the current position and, subject to a number of caveats, he advised that the offer of £150,000 could “probably” be accepted. In his letter to the Respondent Mr Woolford said this:

“I think it is important for us to meet to go through the Advice and to take a decision as to how matters are progressed. Obviously it will be necessary for me to travel up to Scotland to meet with you and I would therefore be grateful if you would let me have a number of dates you could do together with a suggestion as to where it would be most convenient for us to meet”

The Respondent emailed a response on 7 February, raising a number of points and concerns as to counsel’s advice, stating that he was not currently working, criticising the delay, and rejecting the offer. He said at the end of this message “Tim, there are many other issues that need to be discussed...”

Mr Woolford emailed back on 8 February, noting his comments, agreeing that they needed to meet to discuss all the points raised and asking the Respondent to contact his secretary to get a date in the diary. The Respondent contacted her on 11 February, informing her that “An appointment with Tim can be any date and time for me”. This produced a response from Mr Woolford, on the same day, promising to check his diary to “....see when I can get up to see you”. He also stated that he had just settled a large case which was going to take up a lot of his time over the next month, so that “this has now freed up some time for me”. When sending the Respondent the reports of Mr MacKay (on 19 February) and Mr Nicholl (on 22 February) he referred to discussing their contents “when we meet”.

There are further emails and correspondence passing between OMM and the Respondent during February and May 2008, concerning expert appointments and an interim payment, but there is no further suggestion as to a date for a meeting. I note that, in March and April 2008, the Respondent was emailing Tim Woolford as to his current, serious financial difficulties and asking if an interim payment could be made. In emails sent in late May 2008 (13^th, 25^th and 26^th) the Respondent was expressing concern as to Mr Woolford’s failure to respond to him before Mr Woolford emailed back on 28 May apologising for the delay and telling him that there was an offer of £25000 by way of interim payment. The Respondent accepted this.

On 31 May, apparently responding to his solicitor’s suggestion that the original offer should have been accepted (we do not have this email) the Respondent commented in an email in response that his total and future losses would run to well over two million pounds. Mr Woolford responded on the same day that “you can forget £2m – that is ridiculous. You can choose to ignore advice – that is fine but you will end up with a lot less in the end – your choice. Once I have all of the final evidence I will give you my final views”.

Even then, no reference was made to a meeting between them. Yet, on 31 May, less than one month before the expected trial date, Jon Woolford of Nicholas George Litigation Services Ltd emailed the Respondent, saying that he had been asked to take statements urgently from the Respondent and his father and suggesting 3 or 4 June for this purpose. The Respondent emailed back the next day accepting the 4 June. This appointment did in fact go ahead and I shall deal with it below, together with the further correspondence passing between OMM and the Respondent between June and November 2008. However, the evidence shows that no meeting ever took place between the Respondent and Tim Woolford or any other solicitor at OMM.

Having considered all the evidence, I am not persuaded that the new disclosure demonstrates that the Respondent was being evasive or that he was deliberately and repeatedly avoiding a meeting with his solicitor. It is correct that he sought to postpone the meeting initially suggested for the week of 13 August 2007 and that OMM were endeavouring to arrange a meeting over the summer. However, from October 2007 onwards, the fact is that no meeting was ever arranged by his solicitor, notwithstanding the fact that, on several occasions, the Respondent had indicated his willingness and availability for such a meeting. Whilst some blame is to be attached to the Respondent for not following this up himself, it is a matter of concern that, despite Mr Woolford’s expressed intentions, on a number of occasions, to arrange a meeting with his client and his expressed view that such a meeting was necessary, he did not ever arrange one. This was so despite the fact that there were matters concerning this case, not least counsel’s enquiries in February 2008 and the Respondent’s wholly unrealistic understanding of the value of his claim, that called out to be addressed in a meeting between them. The fact that no meeting took place cannot in my view be regarded as evidence supporting the allegations of deliberate dishonesty on his part.

I return to the events of 25 July 2007. Mr Featherby placed much reliance on the Respondent’s email of 00.11, 25 July 2007, referred to above, in which he told Tim Woolford that his parents were taking him away on holiday in August. The Respondent states that, at the time he sent that email, late at night and just before he went to bed, that was in fact his intention. This was despite the fact that he had been sent flight details for Equatorial Guinea on 19 July, for a flight out on 25 July, commencing with a flight from Edinburgh to Heathrow in the afternoon of that day. He states that he had accepted this job, but then got cold feet, decided to go on holiday with his family and then changed his mind again at the last moment. Having sent this email before he went to sleep, he then woke up in the morning and decided to accept the job in Africa, leaving later that day and working out there until 31 August.

This explanation is said to be a lie. However, Mr Cousins points to the following. First, other evidence in the case, which I have already referred to and accepted, shows that there were other occasions in the previous 12 months when this Respondent had been undecided about work or had declined work very late in the day, leaving a plane at last minute in August 2006, for example, and declining a job with Subsea in January 2007. Secondly, there is unchallenged evidence that the Respondent is someone who suffered from mood swings, which could account for such behaviour. Thirdly, there is evidence that there was in fact a planned family holiday at this time in 2007, which went ahead albeit without the Respondent accompanying his family. The Respondent’s mother paid for the holiday accommodation by credit card, and there is a photograph of the event in the bundles of documents.

The Respondent is, I accept, to be criticised for not informing his solicitors as to the change of plan but, against this background, I am not satisfied in the circumstances of this case that the email of 25 July contained deliberate untruths designed to mislead his solicitor as to the true position.

Nor am I persuaded that his father’s reference once again to Spain, on ringing Mr MacKay to cancel his son’s appointment for 10 November, takes the matter any further. This seems to me to be consistent with what happened in the previous year when, for the reasons I have already set out above, I am not satisfied that there was dishonest collusion with his father and no concealment by the Respondent of his work for Oceaneering or of his earnings, in any of his dealings with Digby Brown.

Mr Featherby suggested that the Respondent’s claims to impecuniosity, as set out in his various emails to OMM in the spring of 2008, and in particular his email of 27 March, were also untrue. However, whilst the Respondent had approximately £7000 available to him at this stage, I accept his evidence that this was all earmarked for general living expenses. The three bank accounts disclosed confirm, in my view, that there was a declining financial position at this point and that, by mid-May 2008, the Respondent was overdrawn by about £2000 in total. The bank statements confirm the Respondent’s evidence as to the movements of sums in and out of his accounts between May 2005 and November 2008, and there was no real suggestion to the contrary pursued by the Applicant before me. No evidence has been adduced to challenge any of the material advanced by the Respondent relating to his bank accounts and I find that the Respondent has given full and frank disclosure in this respect.

I now return to the specific allegations being made in Counts 5 and 6, which fall to be considered, as do all the remaining counts, in the light of this analysis and all the evidence in this case.

Mr Featherby made much of the fact that, although referring to the offshore work for Oceaneering that the Respondent had undertaken, the information in the preliminary Schedule of Loss, dated 12 June 2007, included the following:

“Due to the Claimant finding the contracting work physically demanding he was unable to continue with that and from August 2006 has been employed by his father who runs a motorbike shop from his garage at home.

Further details in respect of that are not to hand but for the purpose of this Schedule a net income of £1000 per month is assumed and adopted.”

He suggests the Respondent realised that, when Mr Woolford took over the conduct of his claim, he was personally unaware of the further jobs the Respondent had undertaken for Oceaneering since August 2006; and that he deliberately decided to keep quiet about it, so as to obtain compensation to which he was not entitled. He submits that the Respondent and his father lied to OMM about his whereabouts and repeatedly declined to meet with his solicitor.

In my view however the evidence in this case does not support such an inference. Firstly, as I have already stated, the evidence suggests that the lack of any meeting or discussions with the Respondent led to Mr Woolford constructing this Schedule from the out of date information he had available on the Digby Brown file, and without reference to the Respondent. As things stood, the Respondent was not working for Oceaneering at the time of his last precognition. He states that he was considering alternative directions for the future and was currently working for his father. This seems to have led Mr Woolford to assume the net income of £1000 per month pleaded, for the work he was doing for his father. I accept Mr Cousins’ submission that, given the information that the Respondent had given to Tom Osborne about still working offshore at the handover meeting, it was incumbent upon Mr Woolford to make proper enquiries as to the Respondent’s employment situation, before drafting and serving a preliminary schedule which made no reference to any such work after August 2006.

Secondly, and as referred to previously, the Respondent had signed an authorisation for Oceaneering to be contacted for all his employment details. The Respondent states that he assumed that was being done and that he had no intention of concealing it. Mr Featherby suggests that he did not remind OMM of the existence of this mandate and that he had either forgotten its existence, or hoped that OMM knew nothing of it. I reject this submission. Given his previous openness about this employment, I consider that he was entitled to assume that Oceaneering would be contacted by both Churchill and his own solicitors for updated information. In any event, no specific question appears to have been asked of him, during this period, that would make the mandate relevant or remind him specifically of its existence.

The Respondent states that he thought he must have told Mr Woolford, at some point during 2006 or 2007, that he was still working for Oceaneering from time to time. However, there is no attendance note or other document recording this after the handover meeting, when he told Tom Osborne this. Given the absence of any reference to this work in the pleadings I regard it as unlikely, but that does not lead me to a sure finding that the Respondent was deliberately concealing this from Mr Woolford or OMM generally. I am not satisfied that he was.

Thirdly, the Respondent appears also to have told Dr Carson in November 2006 that he was still working for Oceaneering, doing the occasional trip off shore whilst working for his father in the motorcycle business.

All this evidence, in my view, points away from a deliberate attempt by the Respondent to conceal this employment altogether as from August 2006. In my judgment the evidence is inconsistent with a dishonest intention to pursue a false claim. A trail of enquiry had been set up by information that the Respondent had himself disclosed.

For all these reasons I find Counts 5 and 6 (alleging deliberate, false statements in the Particulars of Claim and first Schedule of Loss) not proved.

Mr Featherby suggests that, in any event, the Respondent must have read these documents upon his return to Scotland from Malaysia in June 2007, even if he had not done so before; and that his failure to draw Mr Woolford’s attention to their inaccuracies connotes a dishonest intention to conceal the truth and pursue an inflated claim.

Certainly, had the Respondent read these documents in June 2007, he would have seen then, as he does now, that the statements made as to his employment situation were inaccurate and misleading. However, having heard the Respondent, who denies that he did read them, I am not satisfied on the evidence before me that he did read them, either then or at any stage before his current solicitors were instructed in relation to these proceedings.

After the first hearing in April 2010, and before the new disclosure, I commented in the draft judgment on what I regarded as a curious feature of this case, namely the Respondent’s apparent failure properly to engage with the substance or progress of his claim, after OMM took over the conduct of it. Mr Cousins submits that, in fairness to the Respondent, his evidence and previous disclosure had been “issue focussed” and defined by reference to the specific counts raised against him; and that he had never asserted that there was no other engagement with his case outside of the matters specifically raised in the counts.

Having reviewed the evidence he gave on that occasion, there is in my view, some force in that submission; and there has now been an opportunity to examine the full extent of his engagement. Even with the benefit of all the extensive documentation now before me, however, I still consider that it indicates a claimant who was not at all pro-active in dealing with the case, or in seeing his claim pursued. Certainly, he signed the initial, conditional fee agreement; periodically confirmed CRU figures; showed interest in the revised offer and counsel’s advice of February 2008 and, at one stage, in an interim payment; attended the appointments with experts instructed in the case; and dealt with other specific or administrative enquiries when asked to do so, as revealed in the documents.

However, I accept the submission of Mr Cousins that the overall picture is that this was not a claimant who showed regular or keen interest in the litigation. Months would go by, before 2008, with only infrequent exchanges between solicitor and client. The pace did then quicken during the first half of 2008, as I have already indicated, but the Respondent’s email of 7 February 2008, responding to counsel’s advice, is an unusually detailed response and stands out as such amongst all the other documents in the case. There are no letters, emails or attendance notes of telephone calls from the Respondent pressing OMM for information on what was happening or asking repeatedly for compensation. Indeed, he refused the earlier suggestion of an interim payment because he did not consider that he needed one at that stage. In general, correspondence was never initiated by him, though the evidence shows that he did usually respond to specific enquires when asked. Further, the meeting to discuss the issues in the case, long promised and anticipated, never in fact materialised. I shall come to what happened in and after June 2008 below, but it remains my view that, save in the respects I have identified, the Respondent appears on the evidence, viewed as a whole, to have been more re-active than pro-active in relation to the progress of his claim and that, at times, he was entirely disengaged from it.

I accept that there is no clear, medical explanation in the reports to account for this. Mr Featherby suggests that the Respondent’s explanation for not reading any of the case documents, that he was often feeling unwell and unable to concentrate, is inconsistent with a man who was “travelling the world” and working on ROVs. However, notwithstanding the fact that he was able to work as he did, there is clear evidence in the reports of the Respondent having suffered psychological injuries, involving the possibility of acquired brain injury. There is some indication of cognitive impairment, mood swings, depression and impairment in social functioning, together with heavy drinking. The description the Respondent gives of his condition would appear to be consistent with this. I therefore accept Mr Cousins’ submission that his injuries and their effects may have contributed to some extent to the Respondent’s failure to engage properly with this claim and with the necessary litigation steps, although it is simply not possible to assess accurately the extent of that contribution.

This lack of engagement may also account, in part, for the Respondent’s failure to chase up the suggestion of a meeting with Mr Woolford, to inquire as to how his claim was progressing, or to press his solicitor to come up to Scotland to discuss it with him. This absence of pressing and repeated inquiries as to the likely award of compensation and when he would receive it is more consistent, in my view, with a man who is not engaged with the process than with someone deliberately suppressing relevant material and advancing a dishonest claim, in order to obtain money to which he knows he is not entitled.

Notwithstanding his injuries, however, the Respondent must, as he himself recognises, accept a substantial share of the blame for his failure to apply his mind to these documents and indeed to others, to which I shall shortly refer.

Count 7 relates to the statement verifying the List of Documents, signed by the Respondent personally on 4 December 2007.

By now the Applicant’s Defence had been served on 20 June, and a copy was sent to the Respondent on 12 July. The further Part 36 offer was made by the Applicant’s solicitors, also on 12 July. On 9 October 2007 Master Foster entered judgment for the Respondent for 75 per cent of the claim, with damages to be assessed. Directions were given as to preparation for the hearing, with a trial window in June/July 2008.

Between July and the end of November 2007 the Respondent worked for Oceaneering during the following periods:

Further, following the end of the Luanda project in November, the Respondent did not work again for Oceaneering (or indeed for anyone else) until July 2008. His evidence is that, during this seven-month period, he became increasingly depressed and unwell, that he became heavily dependent upon alcohol, did not socialise with anybody and from time to time had suicidal thoughts. I accept that evidence.

The brief OMM file note, dated 26 November 2007, indicates that another OMM solicitor, Helen Thompson, drafted a “list of documents for standard disclosure form”. By his letter of 3 December 2007 Mr Woolford wrote to the Respondent simply enclosing the draft List, asking him to sign it where shown and to date and return it. The Respondent did as he was asked. His email of 4 December refers to him having posted it back the same morning that it arrived. He did not say either that he had read it or approved it. The Respondent’s evidence is that he did not read it.

In the letter from OMM enclosing this list there was no explanation as to the meaning or purpose of standard disclosure, or as to the Respondent’s duties in respect of it, and the effect of the statement of truth. No copy of Master Foster’s order was provided. No copy of the signed list appears to have been sent to the Respondent after he returned it.

The list itself made no reference to any documentation from Oceaneering. Since OMM were plainly aware from the precognitions that the Respondent had worked for Oceaneering in 2005/2006, and had referred to Oceaneering in the Schedule of Loss, the list of employment documentation was clearly incomplete, even on that basis.

I am not satisfied, for the reasons I have already identified, that the Respondent read it. Even though he was unwell, he is to be criticised for failing to read a document before signing it, as he accepts. Had he read it, he might have identified the omission and pointed it out, though without any explanation from his solicitor as to the purpose of this legal document and what it should contain, I am not persuaded that he would necessarily have spotted it. However, he did not do so. Further, no direct enquiries appear to have been made by OMM, either of Oceaneering or of the Respondent himself at this stage, as to his previous or current employment position.

In all the circumstances I am not satisfied that this omission was deliberate or that the Respondent signed what he knew to be an untrue list of documents in order to support a dishonest claim. I find that the allegation in Count 7 (false verification of the list of documents) is not proved.

At the re-fixed medical appointment, on 6 December 2007, the Respondent was examined by Mr MacKay, consultant orthopaedic surgeon, on behalf of the Applicant. On page 2 of his report, dated 28 January 2008, Mr MacKay provided a short summary of the Respondent’s employment. He referred to the Respondent as having been involved in offshore work since 2000; and that he stated that he worked for Oceaneering in Aberdeen “only for six weeks” after starting with them 18 months after the accident; and that he was doing no more engineering work “at this stage”, being more involved in the running of his father’s business, where he had gone after the six weeks’ work in Aberdeen.

The Respondent cannot now recall what he did say to Mr MacKay, and since what appears is obviously a short summary of what had happened since the accident, it is difficult to form a clear view as to what exactly was said. The Respondent had in fact started work with Oceaneering 15 months after the accident, not 18. He had clearly worked for them for periods totalling more than six weeks and had already told his solicitors this.

I reject the suggestion that this report evidences the Respondent to be deliberately advancing a false case to Mr MacKay. The first Schedule of Loss served on the Applicant had already referred to him working for Oceaneering on occasions between May 2005 and August 2006 and the Respondent had provided this information in his precognitions. Further, it is correct both that he was in fact doing no engineering work at the time he saw Mr MacKay on 6 December, and that he did not undertake such work again until July 2008. I am not satisfied, therefore, that the Respondent was seeking to take advantage of the Applicant’s ignorance of the true position, as alleged, or that he deliberately and dishonestly advanced a false case to Mr MacKay, as alleged in Count 8.

Count 9 alleges that the Respondent also advanced a false case in statements he made to Andrew Nicoll of Keith Carter and Associates, the employment expert who interviewed the Respondent in Scotland, in the presence of his father, on 5 February 2008. Mr Nicoll gave evidence before me. The essential allegation is that the Respondent told him that, since August 2006, the only work he had done had been for his father’s motorcycle business; that this was false and that the Respondent knew it to be false.

This allegation has caused me some difficulty. Mr Nicoll is a highly experienced employment consultant. He has conducted many such interviews and prepared numerous reports addressing claimants’ employment and employability. He said in evidence that he had a reasonably clear memory of this interview with this Respondent. He made contemporaneous, hand-written notes from which he prepared his report within 72 hours of the interview. I have considered these notes carefully.

In accordance with his normal practice, and so as to inform himself as to the relevant background before interviewing the Respondent, Mr Nicoll had read the medical reports, together with the Schedule of Loss and Inland Revenue records.

In his report he referred in some detail to the Respondent’s employment background and to the injuries and their effects upon him and upon his ability to work. Having referred to his fitness to return to work by May 2005, he then said this at paragraph 26:

“By reason of the good market for ROV operators Mr Montgomery found a job easily through a friend with the oil field services group Oceaneering. He was employed in Aberdeen but was required to work off shore in a role he says was purely administrative related to the operation of the ROV. He began the job on 22 May 2005 and carried on working for Oceaneering until August 2006. The earnings he received were in excess of those he had commanded at GM [Global Marine].”

Thereafter, in paragraphs 27-35, Mr Nicoll’s observations reflect his own understanding of what the Respondent was telling him, namely that since August 2006 he had worked only for his father. There were references to him being unable to cope with the offshore work, and to his anxiety at being away from home, which had led him to withdraw from the job. On reading this section of the report, the impression clearly given is of a man unable to socialise and living a self-isolating and unhappy existence. At paragraph 33 Mr Nicoll stated:

“At the present time Mr Montgomery does not consider himself fit for employment. He has therefore not applied for any other jobs, or considered going back to work, full-time or part-time. He has not attended the job centre or made any contact with the Disability Employment Adviser …”

Mr Featherby submits that the Respondent knowingly gave a detailed and entirely false account of events to Mr Nicoll, and that he intentionally portrayed himself as a pathetic and disabled man, in order to deceive him. The Respondent accepted in evidence that the contents of the report were misleading and did not reflect the true position. He contended, however, that he had not intended it to appear that way. His case is that he had not in fact worked for Oceaneering for two months by the time of this interview; that he was extremely unwell and uncertain as to when, or if, he would undertake any further work with them; and that he thought he had endeavoured to explain this to Mr Nicoll, although he could not account for the fact that Mr Nicoll had not understood this to be the position.

I am troubled by what is obviously a serious misunderstanding between them, if the Respondent’s evidence is to be believed. I also view with some unease the role played by the Respondent’s father in these events. He was unable to recall anything about this interview or about what had been said, even though he was present throughout, and I regard his evidence as most unsatisfactory. It appears that he did not himself intervene to correct anything that his son said that he regarded as inaccurate or incomplete, or to correct any misunderstanding there appeared to be on Mr Nicoll’s part, especially in light of the Respondent’s admitted difficulties.

There clearly were difficulties for the Respondent in this interview. In evidence, as in his report, Mr Nicoll described the Respondent in interview as a man whose confidence was low, “his morale gone”, but who nevertheless seemed “entirely sincere” in wanting to “get out of his present dead-end”. Mr Nicoll agreed in cross-examination that the Respondent presented to him as someone who was having problems concentrating, and who was clearly depressed. I regard these as significant observations from an experienced employment expert and I reject Mr Featherby’s suggestion that the Respondent and his father were colluding in advancing a dishonest claim. The whole of the evidence in this case does not permit the drawing of such an inference in my view.

Mr Nicoll also fairly accepted or agreed with the following propositions put to him by Mr Cousins on the Respondent’s behalf: that the Respondent had himself disclosed in this interview the fact that he had previously worked for Oceaneering; that this fact was already in the Schedule of Loss and had not therefore been hidden from anyone; and that, notwithstanding his own understanding of what was said and what was in his report, his own contemporaneous hand-written notes did not in fact refer to the Respondent having said in terms during this interview that he had not worked for Oceaneering since August 2006.

The state of the evidence in relation to this count is unsatisfactory. However, the general background, Mr Nicoll’s frank acknowledgment of the Respondent’s depressed state and problems in concentrating during this interview, the account that the Respondent had already given to Dr Carson and Tom Osborne in November 2006, and the other evidence referred to above, which I regard as inconsistent with an intention to conceal and to cheat, means that I am not satisfied to the required criminal standard that false statements were deliberately advanced by the Respondent to Mr Nicoll, in order to suppress evidence and support a dishonest claim.

Count 10 alleges the advancement of a false case by the Respondent to Dr El-Assra, consultant psychiatrist instructed by the Applicant, on or about 20 April 2008, in that he had said that he had worked only for a short spell at the start of 2006 for a couple of weeks and did not work again thereafter.

In fact the allegation in this count does not accurately repeat that which appears in Dr El-Assra’s report, where the Respondent is said to have stated, so far as is relevant, that he had had “a couple of short spells with companies in Aberdeen … the first spell was at the beginning of 2006 … I tried just a couple of weeks … the second spell I tried again in the same year in summer …” The Respondent was then noted to have said that he had no further jobs after that.

I am not satisfied, however, that the Respondent gave the date of his first job with Oceaneering as being at the start of 2006, which is inconsistent with all the other information recorded as having already been provided by him; and the correct date was a matter of record. I consider that this is likely to be an error on Dr El-Assra’s part. Further, by the time the Respondent saw him, he had not in fact worked for Oceaneering since November 2007. In the circumstances I am not satisfied that the Respondent was deliberately and dishonestly advancing a false case to this doctor, as alleged in Count 9.

By the end of May 2008 the trial window was approaching. The Respondent’s solicitors had served no witness statement from the Respondent and no updated Schedule of Loss. The Applicant’s solicitors applied to the Court and, on 4 June 2008, Roderick Evans J made an ‘unless order’, by consent, that these documents be served by 18 June, in default of which the Respondent would be debarred from adducing any lay evidence or pursuing a claim for special damages and future losses. The Respondent had still not had any meeting with OMM regarding his claim.

OMM appear at this point to have sprung into action. Although further medical enquiries seem to have led, shortly afterwards, to the case being taken out of the list for hearing on 23 June 2008, an email from Mr Woolford to counsel dated 11 June conceded that a “significant amount of fault” for this state of affairs lay with him and his failure to monitor the timetabled directions.

Even then Mr Woolford did not come to see the Respondent himself. Instead he instructed his brother, Jon Woolford, (a professional draftsman of witnesses statements working for a different organisation) to contact the Respondent and to prepare his statement. In an email from Tim Woolford dated 30 May 2008 his brother was advised that the information in the precognitions could be “recycled and added to”. Mr Woolford also informed him of the 18 June deadline. The matter was therefore very urgent. He sent him details of the medical reports he needed to read “to get a flavour of what happened to him” and suggested that he “check out the Digby Brown offices”.

Apologising for the rush, he instructed his brother, significantly, as follows:

“What I am really interested [in] is his employment history since the accident. What has he been doing? How much has he been earning? Can he improve his income? What does he think that he would have been doing but for the accident? I have also asked him to find any relevant documentation relating to this e.g. salary slips, contracts etc. that may support what we are saying.

Bruce is not very good with paperwork so we may just have to end up doing the best we can with what we have.”

With less than a month to go before the trial date it is remarkable, in my view, that a solicitor conducting personal injury litigation on behalf of a claimant should express himself in these terms. Even if he was entitled to consider the Respondent as being “not very good with paperwork”, or perhaps more particularly because he held that view, the remedy had always lain in his hands by securing the appropriate mandate to enable him to obtain all the necessary information from the employer, identified as long ago as April 2006 in the Respondent’s precognition.

Attendance notes dated 31 May and 1 June, made by Jon Woolford, show that he contacted the Respondent and arranged an interview for 4 June in Scotland. The Respondent’s father Ian Montgomery was also present at this interview. A witness statement was also taken from him. Jon Woolford’s hand-written notes of both interviews are in the bundle. Witness statements were then prepared and sent to Mr Woolford at OMM on 9 June.

It is clear from the correspondence that OMM sent the Respondent’s father’s statement to him by letter of 11 June, asking him to read it carefully and, if happy with it, to sign and send it by return, because of the need to serve it by 18 June. I assume, although there is no copy of a similar letter being sent to the Respondent, that one was sent in the same terms enclosing the Respondent’s own witness statement. The Respondent responded immediately by email on 11 June 2008 stating “I have read over the statements and they are fine”. The statements were signed and verified on 13 June and served on the Applicant’s solicitors by fax on 16 June.

Counts 11, 12 and 13 allege a contempt of court in relation to alleged false statements made by the Respondent in his witness statement as follows:

There is some uncertainty as to whether Jon Woolford’s handwritten notes of interview indicate that the Respondent was noted to have said he had not really worked “because of” the accident, which was then written up incorrectly as “since” the accident in the statement. The evidence is unclear, but the statement was in any event signed by the Respondent without alteration, and I do not regard this point as having any significance.

The witness statement (in particular paragraphs 33-39) is said to be false, to have been made without an honest belief in its truth, and in order to interfere with the course of justice by pursuing a false claim and suppressing the information that he had worked for Oceaneering since August 2006. The Respondent denies that he ever deliberately misled Jon Woolford or tried to conceal his employment with Oceaneering, but accepts that he did not read it through before signing it.

I bear in mind, in considering these allegations, that they are in a different category from those contained in the other counts, involving as they do statements made following a face to face meeting with Jon Woolford and then signed by the Respondent as correct, when they plainly are not. I bear in mind too that Mr Woolford’s attendance note shows that he spent some 3 hours and 42 minutes interviewing the Respondent, and that he made eight pages of contemporaneous hand-written notes, which I have read carefully. These counts, in my view, mark the high point of the Applicant’s case in these proceedings.

On the other hand, as Mr Cousins observes, there are a number of unsatisfactory features to this aspect of the case. Even as late as June 2008, the Respondent had not yet met the solicitor retained by him to act on his behalf in respect of this claim, after the initial handover in Edinburgh, in November 2006. No attempt appears to have been made to obtain updated information as to his earnings or current employment situation, from the Respondent himself or from his previous employers, before this meeting.

His witness statement was being taken late in the day, as the deadline approached, by someone wholly unfamiliar with his history, and with what had gone before.

Further, despite the instructions from Tim Woolford as to what he particularly needed to know from the Respondent, the notes of interview suggest that this was never addressed or investigated with him in any detail at all. The first five of the eight pages of handwritten notes relate not at all to the Respondent’s employment history since the accident, as Tim Woolford had requested, but rather to general background, to the circumstances of the accident, the nature of the Respondent’s injuries and their effects upon him.

Significantly, it is clear from these notes that the Respondent was not being proofed by reference to what had been set out in his earlier precognitions or in the first Schedule of Loss accompanying the Particulars of Claim, where his employment with Oceaneering had been expressly referred to. Whilst, clearly, the Respondent had a duty to be frank and honest when interviewed he was therefore not questioned directly about matters of undisputed fact, already openly documented and of which the Applicant’s solicitors were well aware. Indeed, there appears to have been no reference to Oceaneering at all. Thus, despite a written note to the effect that the Respondent said he had not really worked since the accident, no further questions appear to have been asked about this, with reference to what had already been set out in the Schedule, and to the fact that his incapacity benefit would have ceased upon his resuming work in mid 2005. There is no evidence before me from Jon Woolford explaining the questions he asked and the answers given, or providing his account of what happened at this interview.

The Respondent states that he must have said these things if they are in the notes, though he does not recall saying them, and he accepts that his witness statement is misleading in the respects alleged. He is right to do so. However, I must be satisfied to the criminal standard that when being questioned, or at any rate when he signed his witness statement, he was knowingly making false statements and seeking to suppress or misrepresent his true employment situation, in order to advance a dishonest claim.

I take into account, in considering this, the submissions made by Mr Featherby. He points, for example, to references also in the statement to the Respondent not having driven since the accident, assertions also apparently made to Mr Nicoll and Dr El-Assra, but which, as the Respondent accepts, were not correct, or at least were not correct by the time he made his statement. He points to the unsatisfactory evidence given by the Respondent’s father, who was plainly not seeking to assist the Court as to what had happened at this interview. I agree, and I shall have more to say about this when considering Count 14 below. He points to the fact that the statements were both sent for signature and that the Respondent said he had read them and was happy with them.

On the other hand I have regard to the unchallenged fact that this Respondent had never sought to hide his employment history from his previous solicitors, Digby Brown, and that he had signed an authorisation for his employment records to be provided. I recognise that he may still have been in the low and depressed state observed by Mr Nicoll, as he states he was, not having done any work for Oceaneering since November 2007. I also agree with Mr Cousins that it was most unsatisfactory for Jon Woolford to leave entirely unexplored a statement that he had not really worked since the accident, given the history of working for Oceaneering already referred to in his precognitions, in the Schedule and in his interview with Dr Carson. I agree with him that, when he said this, it is unlikely to have been said with the intention of concealing what was already a matter of record. Further, just over a month later, on 17 July 2008, the Respondent provided, at OMM’s request, two more signed authorisations, to enable both OMM and the Applicant’s solicitors to approach Oceaneering for disclosure of all his employment records.

I also have regard to the part that the Respondent’s injuries and their effects may have played in what occurred at this interview, in the Respondent’s level of concentration and understanding of the questions asked and of the answers he gave. Observing him in court throughout the hearing and listening to him give evidence and respond to Mr Featherby’s questions, I was myself struck by his “flat” tone and manner, and by his apparent lack of engagement with the present proceedings. There seemed to me to be little improvement in this respect at the recent hearing.

The Respondent is most certainly to be criticised for failing to ensure that his witness statement was accurate. His evidence is that he did not read his own statement or his father’s statement. As he now accepts, he plainly should have read his statement before signing it, and he plainly should not have told OMM that he had read it when he had not. However, in this unusual case, that does not lead me inexorably to a sure finding that he did in fact read it, or at any rate read it with the degree of care that he should have done. Had he done so, he would have identified the complete absence of any reference to the work he had done for Oceaneering since August 2006.

Despite some unease, I retain some doubt about these counts. I am therefore not satisfied to the required standard that he did read his statement or that he was aware, when he signed it, of what it contained. For these reasons I find Counts 11, 12 and 13 not proved.

Applying essentially the same reasoning I reject the allegation in Count 14, namely that the Respondent caused to be served on the Applicant his father’s witness statement containing a statement to the same effect, i.e. that since the accident the Respondent had not really worked.

This statement was signed by the Respondent’s father, not by the Respondent himself. For the reasons I have already set out above, its contents in this respect were contradicted by the contents of the Schedule of Loss and his son’s precognitions. Further, the Respondent authorised the Applicant’s solicitors to obtain information from Oceaneering just a few weeks after this statement was made. As is the case in relation to the interview with Mr Nicoll, I am troubled by the role played by the Respondent’s father at this interview in addition. I would have expected him to be watching out for his son and acting in his interests, in ensuring the accuracy of the information being recorded and ensuring that there were no misunderstandings or omissions. However, I am not satisfied there was a dishonest conspiracy between them both to suppress the truth. In my judgment, the whole of the evidence before me does not permit me to draw that inference. I am therefore not satisfied that Count 14 supports the overall allegation that this Respondent was dishonestly advancing a false case.

Counts 15 and 16 relate to the second, updated Schedule of Loss dated 16 June 2008 and signed on the Respondent’s behalf by Sonia Hodges, another solicitor with OMM. It is alleged that this Schedule contained false statements verified by a statement of truth, namely that the Respondent had worked for Oceaneering until approximately 31 July 2006, after which he was unable to continue and had not continued working; and that his only earned income since 1 August 2006 had been approximately £1000 per annum from his father’s business.

The Respondent’s evidence is that he did not authorise his solicitors to sign this Schedule on his behalf, and that he was wholly unaware of its contents.

There is no evidence that OMM ever sent a draft of this updated Schedule for the Respondent’s approval, or that they explained its contents or the effect and importance of the statement of truth. On the material before me it appears that the statement of truth was signed by OMM when they had not complied with the requirements of CPR Part 22. I note that it was necessary for this Schedule to be updated urgently, because of the ‘unless order’ made by Roderick Evans J. It would appear that OMM simply used the information they had to date and the contents of the recent witness statement in formulating the various heads of claim. I am not satisfied, therefore, as to the false statement alleged in Count 15 and I find that Count 16 is not proved.

As I have stated, the trial date in June 2008 was vacated. A new date of 12 November was fixed. The correspondence shows that the Respondent expressed concern as to what had happened and that Tim Woolford emailed him on 30 June with an explanation. In this email he referred to “...a few crucial pieces of evidence that were outstanding” and said that he was instructing new counsel. He ended by saying “Once the additional evidence is in place I will travel up to see you” and suggested that it would be sensible to arrange a meeting with counsel in the near future. No such meeting in fact took place.

OMM requested the Respondent’s employment details from Oceaneering by letter of 18 July 2008. Cogents made the same request by letter of 30 July, enclosing the written authorisation. Some documents were provided but Cogents had to write again, on 3 November, before the pay records were provided by email of 9 November. These records showed the Respondent’s gross taxable and tax deducted pay from 15/04/05 to 01/09/08. It was apparently around this time that Nicolene Davies at OMM was seeking to update the Respondent’s witness statement. An attendance note of 7 November shows her struggling to reconcile what he had apparently been saying to some of the experts with the contents of his statement taken in June that year. OMM’s concerns were, however, overtaken by events. On 10 November Cogents wrote to OMM, drawing attention to the employment with Oceaneering, withdrawing the offer made on 12 July 2007 and offering settlement on the terms which were ultimately accepted.

Mr Woolford emailed the Respondent on 10 November, advising him to accept this offer and warning him that, if he proceeded to trial, he risked being prosecuted for perjury. The Respondent responded on 11 November, stating “Yes accept the offer. I have just tried when I can to secure work. If that is the best course of action to take then I will take your advice....” OMM then informed him that contempt proceedings were to be considered in any event. In his reply he stated as follows in relation to his employment, “I do not know exactly what the problem is. I have worked with Oceaneering on a day rate and worked for a good rate when I can. I have not worked since November 2007 until end of Summer 08 and have docs to prove...”

I turn then to Count 17, which relates to the third and final Schedule of Loss, dated approximately 3 November 2008. This Count alleges that the Respondent caused a statement to be made that he had carried out some contract work for Oceaneering from September 2008 to November 2008, receiving remuneration of £2000. It is alleged that this statement was false and that the Respondent knew it to be false in that he had worked for Oceaneering on and off since May 2005 and had earned considerably more.

Count 17 does not allege a free standing contempt. There was no verification of the Schedule by a statement of truth on the part of OMM. This error in the information it contained appears to be due to the fact that Oceaneering had not yet provided full details of the Respondent’s earnings to OMM, despite the fact that the Respondent had given authority for them to obtain such information some months previously. The author simply relied on the information in earlier, incorrect documents, together with information from the Respondent that he had started working for Oceaneering again in September 2008. In my view this count does not support the overall allegation of dishonest advancement of a fraudulent claim.

Counts 18, 19 and 21 to 23 can be dealt with shortly because they effectively duplicate allegations made elsewhere and therefore require no separate finding. Count 18 is effectively a duplication of the allegations presently contained in Counts 11, 12 and 13. Count 19 is a duplication of the allegation in Count 7. Counts 21, 22 and 23 are all aspects of the overall contempt alleged in Count 20. Count 21 alleges the making of false statements in support of a false claim. Count 22 alleges a failure to disclose the truth about the Respondent’s employment; and Count 23 alleges the suppressing of information relating to the Respondent’s earnings.

Mr Featherby submits that Churchill were clearly misled right up to the eve of trial in this case; and that all the evidence now available demonstrates that the Respondent and his father were deliberately and dishonestly misleading OMM over a lengthy period of time. That, he submits, can only have been done pursuant to a dishonest intention to set up a dishonest claim for loss of earnings, and therefore to mislead this Court. Acknowledging the inconsistencies in the evidence, he observes that consistency is not a necessary ingredient of dishonesty; that the Respondent has been shown to have lied on many occasions; and that I should review, indeed reverse, my original conclusion as set out in the draft judgment.

For the reasons I have given in dealing with the individual counts, however, and notwithstanding some continuing unease, relating in particular to the contents of Mr Nicoll’s report and of the Respondent’s own witness statement of June 2008, I remain of the view that the evidence in this case, considered as a whole, has not satisfied me to the criminal standard that this Respondent deliberately embarked upon an attempt to deceive the Court as to his employment and earnings after his accident in February 2004 and to advance an inflated claim; or that he appreciated at any stage that he was advancing a false case. Further, the significance of statements in April 2006 suggesting that the Respondent was asserting that he was on holiday in Spain is much diminished once it is clear, as it is, that they were made at a time in respect of which no claim for financial loss was ever advanced.

Whilst the Respondent must accept, and does accept, his share of the blame for various aspects of his handling of the claim, on the material before me there are real and legitimate concerns as to the extent to which this Respondent was provided with the advice and assistance he was entitled to expect from the solicitors representing him as from November 2006. I say no more than that in these proceedings but, on the evidence before me, the fact that this claim was started and thereafter pursued on a wholly incorrect basis, namely that the Respondent had stopped working for Oceaneering altogether in August 2006, owes much to the failure of OMM to ensure that the correct particulars as to the Respondent’s employment situation were obtained and pleaded accurately on his behalf.

From November 2006 onwards, the Respondent’s work for Oceaneering after August 2006 was readily discoverable as a result of authorisations and disclosures made by him before proceedings were ever commenced. That is not to say that the fact that insurers and solicitors had the means to discover the truth beforehand furnishes the Respondent with a defence to the allegations of contempt. It goes rather to his state of mind at the time. If he had intended to persist in interfering with the course of justice by concealing this remunerated work, it seems to me to be wholly inconsistent with dishonest concealment to have both referred openly to that employment in his previous precognitions, and to have provided written authorisations in June 2006, and again in July 2008, for insurers and solicitors to approach Oceaneering for details of his employment.

Further, notwithstanding the serious concerns expressed by Mr Featherby in October 2010, as to possible, additional sources of income which had not been disclosed, there has now been full financial disclosure in this case, all of which negates any suggestion of dishonesty by the Respondent in this respect.

Considered overall, and notwithstanding a number of unsatisfactory features, there remains a doubt in this case and the Respondent is therefore entitled to the benefit of it. I am not satisfied that this Respondent is in contempt of court. The application must therefore be dismissed.