Road traffic update

Committal for contempt of court is an essential tool allowing the courts to punish persons involved in the court process for their wrongdoing.

In December Matthew Banks, who was a juror in a trial proceeding in the Crown Court at Manchester, decided that he would rather attend a theatre in London to watch the musical Chicago than perform his duties as a juror. He rang the Crown Court and falsely reported that he was sick and unable to attend. His lie was discovered and he received a sentence of 14 days' imprisonment for his contempt.

The Lord Chief Justice has recently expressed his concerns that jurors are frequently using the internet to obtain information about criminal proceedings and thus are being influenced by such information rather than trying the case on the evidence presented in court.

In June 2011 a juror, Joanne Friell, was sentenced to eight months' imprisonment for contempt for communicating via Facebook with a defendant. Such cases attract the attention of the popular press but it is in relation to personal injury cases that applications for committal for contempt are increasingly being used by the insurance industry as a weapon in the war against fraud.

Many professionals involved in personal injury claims regard fraud as a substantial problem, which leads to an increase in the costs of claims and hence increased insurance premiums. It is a problem for lawyers on both sides of the divide as well as the judiciary, legal expenses insurers and liability insurers.

No victimless crime

Manifestations of dishonesty in personal injury claims include: gross exaggeration of the disabilities suffered by claimants; the staging of motor accidents; claims by and on behalf of 'phantom' passengers who were not actually occupants of a vehicle involved in an accident; and claims for injury arising out of the merest bump between vehicles.

Some of the perpetrators of fraudulent claims perceive their actions as amounting to a victimless crime which involves little risk on their part. Judges in the county courts, where the majority of personal injury litigation is conducted, are faced with allegations of dishonesty and fraud on a regular basis. The result of this is often that a trial will take longer due the seriousness of the allegation of fraud with a concomitant effect on the listing of other cases.

Commonly an apparently serious injury claim, pleaded at in excess of £100,000, will be compromised for a fraction of that value once covert surveillance video evidence has been disclosed. Often the outcome in such cases would be some form of costs penalty (if the case had settled outside the period for acceptance provided by a Part 36 offer) but rarely would any direct action be taken against the claimant. The apparent prevalence of fraud engenders a sense of cynicism amongst some insurers with the effect that genuine claimants are put to proof of injuries and disability which otherwise would have been accepted. It may be that the increasing enthusiasm among insurers and their lawyers to apply to commit apparently fraudulent claimants for contempt will serve to deter others from embarking upon dishonest claims.

Exercising caution

Insurers and their lawyers should be cautious about issuing applications to commit where the only complaint is exaggeration. It is not uncommon for claimants to exaggerate their symptoms and disability but such exaggeration of itself does not necessarily indicate dishonesty. Sometimes apparent exaggeration is merely a facet of the individual claimant's personality; some people describe symptoms in more dramatic language than others. Occasionally claimants will exaggerate symptoms because they are anxious to ensure that medical experts or lawyers do not underestimate the impact that the injuries have had on their lives. Where, however, the exaggeration is gross the court may be more likely to form the view that there was deliberate dishonesty but the alleged contemnor will be given the benefit of any reasonable doubt.

In any personal injury claim the following documents must be verified by a statement of truth: the particulars of claim; the schedule of loss and any witness statement. CPR part 32.14 permits proceedings to be brought for contempt against a person if he makes, or causes to be made, a false statement in such a document verified by a statement of truth without an honest belief in its truth. Proceedings under this rule may only be brought by the Attorney General or by permission of the court. Applications to commit for contempt are governed by RSC order 52, which provides that where contempt is committed in connection with county court proceedings an application to commit for contempt must be made to the Divisional Court of the Queen's Bench Division of the High Court. In respect of proceedings before the High Court (including proceedings transferred from the county court to the High Court) committal proceedings can be conducted by a judge of the High Court sitting alone.

Making a case

Contempt of court is akin to a criminal act. The burden of proof lies on the party bringing the proceedings for contempt and the criminal standard of proof applies. In order to establish contempt the applicant must prove: (a) the falsity of the statement made by the alleged contemnor; (b) that the statement has, or if persisted in 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 had no honest belief in the truth of the statement and knew of its likelihood to interfere with the course of justice.

Applications for an order to commit will only be granted if it would be in the public interest. This involves determining whether the case against the alleged contemnor is a strong one; the court will be astute to the risk of vindictive litigants bringing actions for contempt to harass a party against whom they have a grievance. The alleged false statements must have been significant. The court should ask itself whether the alleged contemnor understood the likely effect of the statement and the use to which it would be put. Article 6 of the European Convention on Human Rights applies to applications to commit for contempt and so the alleged contemnor has a right to be informed promptly and in detail of the allegations.

The practice direction to RSC order 52 indicates that the application must identify separately and numerically each alleged act of contempt including, if known, the date of each alleged act. Written evidence in support of or in opposition to an application must be given by affidavit. Even if he has not filed an affidavit, a respondent may still give oral evidence at the committal hearing.

The courts have demonstrated considerable caution in dealing with applications to commit. Solicitors contemplating bringing such applications would be wise to confine themselves to bringing cases where the quality of the evidence is high and specific falsehood can be proved. For example in Walton v Kirk [2009] EWHC 703 (Admin) a finding of contempt was made in respect of the claimant's false assertion that she had suffered a brain injury where there was no medical evidence of any such injury but several allegations of contempt based on apparent gross exaggeration failed.

An application to commit was successful in Nield v Loveday [2011] EWHC 2324 (Admin). The case arose out of a simple road traffic accident in which the defendant had driven negligently across the path of the claimant. The claimant alleged very severe injuries necessitating considerable care from his wife and causing him to mobilise by wheelchair for any appreciable distances.

In particular in his witness statement he described how he had not been able to travel to Italy by car for a holiday and instead he had flown with the assistance of the airport and airline staff. In fact a Facebook page contained a photograph of the claimant on holiday at Lake Garda standing by a motor vehicle and a caravan, it transpired that he had travelled overland from Wales to Italy. A total of ten acts of contempt were proved and a sentence of nine months' imprisonment was imposed on him.

The risk that a defendant will apply to commit for contempt should now be regarded as a common risk of litigation in personal injury cases. Prudent litigators should advise their clients accordingly.