Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392 (Court of Appeal, Sir Terence Etherton (presiding), 19 March 2019)
In this case, the Court of Appeal held that the sentence of six months, suspended, was unduly lenient for an expert witness found to have been in contempt of court by amending the substance of his GP report at the request of the solicitor without consulting the patient.
Finding of ten grounds of contempt – claim by insurance company against expert witness – sentence of six months imprisonment – appeal on grounds of undue leniency – employment of respondent as general practitioner by NHS – system devised for speedy production of medical reports in low value personal injury claims – fixed fee – 5,000 reports per year – income of £350K – respondent examined injured party – produced report – fully recovered – symptoms of whiplash – report dictated in presence of injured party – declaration – solicitor contacted GP to say that injured party had not fully recovered – request that GP review his notes – second report provided – no further examination of injured party – no notes of initial examination – allegations of interference with the administration of justice – document verified by a statement of truth – false – reckless – overriding duty owed by experts to the court – CPR 35.3 – contempt of court by a false verification of truth – Section 14 of the Contempt of Court Act 1981 –
“Later that same day, 24thFebruary 2012, a second report (“the revised report”) was produced by the Respondent or on his behalf. There had been no further examination of Mr Iqbal, and it does not appear that the Respondent had any significant notes of his initial examination beyond what was recorded in the original report. As the judge noted, the revised report appeared superficially to be identical to the original report. It bore the same date, 17thFebruary 2012, and contained nothing to indicate that there had been a previous report or that this was an amended report. … The revised report did however differ very significantly from the original report. It recorded that symptoms of moderate pain and stiffness in Mr Iqbal’s neck and shoulder had developed on the day of the accident and had not yet improved, and that Mr Iqbal was still taking analgesia. It gave a prognosis that pain in the right wrist, and pain and stiffness to the neck and shoulder, “will fully resolve between 6-8 months from the date of the accident”.”
“We say at once, however, that the deliberate or reckless making of a false statement in a document verified by a statement of truth will usually be so inherently serious that nothing other than an order for committal to prison will be sufficient. That is so whether the contemnor is a claimant seeking to support a spurious or exaggerated claim, a lay witness seeking to provide evidence in support of such a claim, or an expert witness putting forward an opinion without an honest belief in its truth. In the case of an expert witness, the fact that he or she is acting corruptly and makes the relevant false statement for reward, will make the case even more serious; but it will be a serious contempt of court even if the expert witness acts from an indirect financial motive (such as a desire to obtain more work from a particular solicitor or claims manager), or without any financial motivation at all, and even if the expert witness stands to gain little financial reward by it. This is so because of the reliance placed on expert witnesses by the court, and because of the corresponding importance of the overriding duty which experts owe to the court (see [33-34] above).”
“With all respect to the judge, however, we are satisfied that the order for committal in this case was wrong in two respects. First, the term of committal should have been significantly longer than 6 months, even taking into account the mitigation available to the Respondent: we do not think the Respondent could have appealed successfully against a term of 12 months, and we cannot think that a term of less than 9 months was appropriate. Secondly, the term should have been ordered to be served immediately, there being no powerful factor in favour of suspending it. We are satisfied that a suspended term of 6 months fell outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.”
South Wales Fire and Rescue Service v Smith[2011] EWHC 1749– false claim by fireman
Summers v Fairclough Homes Ltd[2012] UKSC 26, [2012] 1 WLR 2004– exaggeration of claim
Liverpool Victoria Insurance v Bashir[2012] EWHC 895 (Admin)