Application for permission to bring contempt proceedings: a useful illustration (Aviva Insurance Ltd v Randive)

By Peter Yates

In Aviva Insurance Ltd v Randive [2016] EWHC 3152 (QB). Slade J dealt with the Applicant’s application for permission to bring contempt proceedings against the Respondent. No new points of principle arise, but Slade J’s recitation of the existing principles and treatment of the issues in the case is a useful indication of how common RTA issues are treated in contempt proceedings.

The Respondent had brought a claim for damages arising out of a road traffic accident. Although the Defendant in those proceedings (insured by the Applicant) had admitted negligence, causation and loss had been denied. The Respondent alleged that he had suffered soft tissue injuries to his neck and back. At trial, following cross-examination, the Respondent discontinued his claim. The District Judge found the claim to be fundamentally dishonest and awarded the Defendant/Applicant its costs.

The Applicant sought to bring contempt proceedings on the basis of allegedly false statements made in documents verified by statements of truth without an honest belief in the truth of those statements, pursuant to Civil Procedure Rule 81.12(3). The Applicant also pursued contempt proceedings against the Respondent for allegedly false statements made by the Respondent in an affidavit in response to the instant contempt application. No permission was required for the proceedings based on an affidavit – a distinction which was described as “hard to sustain” by Green J in International Sports Tours Ltd v Shorey and others [2015] EWHC 367 (QB) at [41].

Slade J adopted the summary of the principles relevant to an application for permission to bring contempt proceedings set out by Cox J in Kirk v Walton [2008] EWHC 1780 (QB) at [29]:

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

The Respondent was alleged to have made four statements in his witness statement and his response to a Part 18 request which were false and which he made without an honest belief in their truth. In the course of this application, his counsel suggested that, although there was clearly a prima facie case of falsehood in relation to three of the statements, they were of differing degrees of gravity and the application “should be looked at in the round”. Summarising his submissions, Slade J said:

“… Mr Naik submitted that committal for contempt of court should be reserved for the most serious lies, for example contrived accidents in road traffic claims. Mr Naik contended that courts are routinely faced with unreliable witnesses, inconsistence evidence and make adverse findings against a party but that does not call for contempt proceedings. Mr Naik submitted that the Respondent had already paid the price and had been punished for ‘his lies’; he had been ordered to pay over £8,000 in costs to the Applicant. Further, it was said that the likely cost and court time which would be spent on contempt proceedings was not warranted in light of the small sums which had been claimed by the Respondent, the costs penalty which he had been subject and the serious damage which could be caused to his career as an IT consultant.”

First statement

The Applicant alleged that the Respondent’s claim in his witness statement to have suffered neck and back pain was knowingly false. In order to establish a prima facie case to that effect, the Applicant relied on a letter from the Respondent’s insurer confirming that there were no injuries. GP records relating to a consultation five days after the accident made no mention of an injury sustained in the accident, and indeed appeared to refer to pre-existing back pain which had been exacerbated by exercise in the gym. The Respondent relied on the conclusion of Buxton LJ in Denton Hall Legal Services & Others v Kathryn Hilary Fifield [2006] EWCA Civ 169 at [77]:

“What the doctor writes down as having been told by the patient, as opposed to the opinion he expresses on the basis of those statements, is not at that stage evidence of the making of the statement that he records”.

The medical report which formed the basis of the claim had been prepared without sight of the Respondent’s medical records. In an amended report, the medical expert changed his conclusion in relation to the Respondent’s back pain. The expert had originally concluded that the pain was solely attributable to the accident. Having reviewed the Respondent’s medical records, however, the expert concluded that the back pain was due to the exacerbation of a pre-existing condition.

Relying on Denton Hall, Slade J concluded that the absence of a reference to the accident in the GP notes was “not evidence that he made no mention of this”. However, the fact that no mention of the injury was made to the insurers on the day after the accident was said to be “more surprising”. Slade J added, however, that “It is unsurprising if his existing pain was aggravated by his vehicle being hit from behind.” She concluded: “In my judgement it cannot be said on the material before the court that there is a prima facie case that these paragraphs 17 and 18 of the Respondent’s witness statement were false and made without an honest belief in their truth”.

Second statement

The Respondent, in his witness statement, had asserted that he had stopped driving for six months after the accident as he had been advised not to drive. In cross-examination at trial he conceded that he had driven short distances until he felt pain. In his affidavit in response to the contempt application, the Respondent stated that he had driven only on one occasion. Slade J summed this point up bluntly: “The Respondent said that he did not drive for six months after the accident but he did”. There was, therefore, a “strong prima facie case” that this statement was knowingly false.

 Third statement

In response to a Part 18 request for further information the Respondent had asserted that the approximate speed of the Applicant’s insured’s vehicle at the time of impact had been 30 to 40 mph and that his vehicle had been shunted “a few metres away” in a “straight direction”. In his evidence at trial the Respondent had reduced the alleged speed down to 20 to 30 mph and admitted that his vehicle had not moved forward, and had only “rocked”. Slade J distinguished between the Respondent’s statements about speed and the movement of his own vehicle. There was, she said, “room for argument” about whether he had known that his original estimate of the other car’s speed was false. There was no such room in relation to his statement that his own vehicle had moved forward. “The Respondent was at the wheel of his car. He must have known whether his car was pushed forward a considerable distance on impact or whether it did not move forward but rocked in its stationary position.” There was a strong prima facie case that he had known this statement to be false.

 Fourth statement

The Respondent had claimed in his witness statement to have taken 10 days off work as a result of the accident. The medical report had recorded that he had had four weeks off work. The Part 18 response asserted that he had been off for a few days. In the Claim Notification Form the Respondent’s solicitors had stated that he had not had time off work. A letter from the Respondent’s accountant purporting to set out the 16 days of absence gave dates which were (almost) all at weekends. The numerous inconsistent statements led Slade J to the conclusion that there was a strong prima facie case that the Respondent’s claim to have had 10 days off work due to the accident was untrue and made in the knowledge that it was untrue.

 Permission

Drawing the threads together, Slade J summarised the task of a court dealing with an application for permission to bring contempt proceedings:

“40. It is not for a court hearing an application for permission to bring proceedings for contempt of court to decide the merits of the application for contempt. The task is to decide on the material then before the court, which has not heard oral evidence. It is to decide whether the Applicant has established a strong prima facie case as asserted in the grounds relied upon that the Respondent made the false statements in documents attested to by a Statement of Truth knowing them to be untrue.

  1. Even if such a strong prima facie case is established, the pursuit of committal proceedings must be in the public interest, proportionate and in accordance with the overriding objective. Applying the overriding objective includes considering the amount of money involved, the importance of the case and allocating to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”

As there was no strong prima facie case that the first statement was in fact untrue, permission in respect of that statement was refused.

Permission was granted, however, in respect of the other three statements. It is useful to note that they were effectively dealt with cumulatively. In respect of the second statement, Slade J stated that she would not have concluded that that statement alone warranted the use of court time and resources which contempt proceedings would have entailed. However, “[t]he untruths which are the subject of Ground 2 contribute to the overall picture of the injury and loss claimed”, and permission was therefore granted in respect of the second statement.

In relation to the third statement, Slade J said this:

“The assertion that the vehicle of the driver insured by the Applicant was travelling at such speed that is caused the Respondent’s vehicle to be shunted forward by a few metres gives an impression of the severity of the impact and therefore the likelihood of injury which formed the basis of the claim pursued by the Respondent. Bringing a false claim in the courts is extremely serious. Apart from the dishonesty of bringing such a claim, false claims lead to waste of court time and resources. Although the claim brought by the Respondent was small in financial terms and contempt proceedings will be costly, in the interests of justice and the overriding objective I consider it proportionate for contempt proceedings to be pursued.”

The same reasoning applied to the fourth statement, and permission was granted in respect of both.

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