Aviva Insurance Ltd v Mr Vishal Randive
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Slade DBE |
| Judgment Date | 16 November 2016 |
| Neutral Citation | [2016] EWHC 3152 (QB) |
| Date | 16 November 2016 |
| Court | Queen's Bench Division |
| Docket Number | Case No: ATC/16/0491 |
[2016] EWHC 3152 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Slade DBE
Case No: ATC/16/0491
Mr Darren Walsh (instructed by Horwich Farelly Solicitors) for the Applicant
Mr Gaurang Naik (instructed by McMillan Williams Solicitors) for the Respondent
Hearing dates:16/11/2016
The Applicant, Aviva Insurance Limited applies for permission to bring proceedings against Mr Vishal Randive, the Respondent, for contempt of court by making false statements in documents verified by statements of truth, without an honest belief in the truth of those statements. The application for permission is made pursuant to CPR 81.12(3). The Applicant is also pursuing contempt proceedings in respect of a false statement made by the Respondent in an affidavit in answer to this application. No permission is required to bring proceedings for contempt of court for an untruth in an affidavit. That permission is required to bring contempt proceeding in respect of false statements in documents attested by a statement of truth and not for such proceedings in respect of affidavits was the subject of comment by Green J in International Sports Tours Ltd v Shorey and Others [2015] EWHC 367 (QB) at paragraph 41 and by Arnold J in Hydropool Hot Tubs Ltd v Roberjot [2011] EWHC 121 (Ch).
The statements which are the subject of this application for permission were made by the Respondent in a witness statement and in his responses to the Applicant's Part 18 Request for Further Information. These documents were made for the purpose of a claim by the Respondent for damages arising out of a road traffic accident on 25 August 2013. The Applicant, the insurer of the driver at fault, admitted negligence but denied causation of the personal injury and consequential loss alleged by the Respondent. The Applicant put the Respondent to proof of alleged loss and damage. For the purposes of this judgment references to the Applicant include references to the driver.
By Particulars of Claim issued in the County Court the Respondent alleged:
"4… on 25 August 2013 at approximately 15:30 hours, the Claimant was stationary at the M25 toll at Dartford Tunnel in Cambridge when the Defendant's driver, who was proceeding behind the Claimant, failed to slow down and maintain a safe breaking distance, colliding into the rear of the Claimant's vehicle"
The Respondent alleged that as a result of the driver's negligence he sustained 'soft tissue injuries to his neck and back'. Details were said to be set out in a medical report prepared by Dr Asghar Jaffery dated 27 February 2014. In addition to general damages, by an updated schedule of loss made on 4 February 2015 the Respondent claimed £4500 for 10 days off work, £1600 for personal training sessions for 10 months and smaller sums for travel and other consequential losses and expenses.
The trial of the Respondent's claim against the Applicant was heard by District Judge Robson at the Eastbourne County Court on 30 April 2015. As before this court Mr Walsh represented the Applicant. The Respondent was represented before me by Mr Naik and at the County Court by Miss Powell. At trial following cross-examination the Respondent discontinued his claim. The Applicant was awarded its costs under CPR 44.16 on the basis of a finding by the District Judge that the Respondent's claim was fundamentally dishonest. Costs of £8,317.23 were to be paid by the Respondent to the Applicant.
On 11 August 2015 the Applicant issued these proceedings against the Respondent for committal for Contempt of Court. The Respondent swore an affidavit on 5 February 2016 in answer to the application for permission to bring proceedings for contempt of court. At paragraph 19 the Respondent set out an account of a conversation which he had with his insurers, Admiral, on 26 August 2013. The Applicant obtained a transcript of that telephone conversation from Admiral. The Respondent's account of the conversation in the affidavit forms the basis of the second application for contempt of court. No permission is required to pursue that application. It will be heard on a future date. I refused permission to adduce at this hearing the transcript of the telephone conversation with Admiral. Such permission was required and should have been sought well before the day of the hearing.
The principles to be applied in deciding whether to grant permission to pursue proceedings for committal for contempt of court are well known and are not in dispute between counsel. I gratefully adopt the summary of the issues relevant to the determination of whether permission should be given to bring proceedings for contempt of court set out by Cox J in Kirk v Walton [2009] EWHC 1780. At paragraph 29 Cox J said:
"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 Applicant alleges that the Respondent made four statements in his witness statement and in his response to the Applicant's Part 18 Request for Further Information, which were false and made by the Respondent without an honest belief in their truth. In the course of the hearing before me Mr Naik rightly acknowledged that the Respondent had attested to the falsehoods alleged in Ground 2, 3 and 4. Counsel said that there was clearly prima facie case of falsehood in each of these grounds. However they were of different degrees of gravity and that the evidence in support of the allegation of falsehood in Ground 1 was weak. He submitted that the application should be looked at in the round. The Respondent's evidence in the County Court proceedings had been found in the costs application to be inconsistent, unreliable and lacking credibility. However 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.
Ground 1
The Applicant contends that the following assertions in the Respondent's witness statement were false and were made by him knowing them to be so. The witness statement was attested by the Respondent as true just before the hearing of the claim before the County Court on 30 April 2015.
The passages in the witness statement relied upon by the Respondent are in the following paragraphs:
"17.. I can remember that the remainder of my journey to Cambridge, after I had the accident, was very uncomfortable as I was experiencing pain in my neck and back, as well as feeling shocked. I had to stop twice in order to have a break from driving to stretch due to the pain. I would describe the pain as moderate at that point"
"18…following the accident, I immediately developed the following symptoms:"
Neck pain;
Back pain
Shock and shakiness
In order to establish a prima facie case that those statements were false and known to be so when they were made, Mr Walsh relied upon the following: a letter of 25 September 2014 from the Respondent's motor insurer, Admiral, confirming that 'the incident' was reported to them on 26 August 2013, the day after the accident, and that 'their [sic] were no injuries to the policy holder or the passenger'. It was said that GP records show that when the Respondent attended his GP surgery on 30 August 2013, some 5 days after the accident, at no point did he mention that he was injured in the accident or that he had suffered any injury to his neck or back as a result of the accident. On the contrary the entry shows:
"Problem now back pain (review) History was improving, but may have exacerbated it by going to the gym"
Counsel also drew attention to the entry in the GP records on 21 August 2013:
"'Problem low back pain (first) history has low back pain for 1 week active gym goer, very stressed at losing time off work due to this pain."
Comment…..private referral done for physio, if pain does not settle after 6 weeks then see GP again for r/v'.
Mr Naik submitted that the GP notes cannot be relied upon as a full account of what the Respondent did or did not say to his doctor. Counsel relied upon Denton Hall Legal Services & Others v Kathryn Hilary Fifield [2006] EWCA Civ 169 paragraph 77 in which Buxton LJ held:
"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".
Counsel submitted that the entries on the GP records do not establish that the Respondent did not mention his accident. However it was acknowledged that the Respondent had pre-existing back pain and that he was referred to an orthopaedic surgeon, Mr Khan, because of his pre-existing problem and not...
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...at [43] that permission was not required under Section VI. 233 The next in the line of cases cited was Aviva Insurance Ltd v Randive [2016] EWHC 3152 (QB), in which Slade J stated at [1] that permission is not required for an application founded upon an 234 Ms Tolaney also referred briefly......