First Capital East Ltd v Ilmi Plana and Another
| Jurisdiction | England & Wales |
| Judge | HHJ Peter Hughes |
| Judgment Date | 23 October 2015 |
| Neutral Citation | [2015] EWHC 2982 (QB) |
| Docket Number | Case No: HQ14X02197 |
| Court | Queen's Bench Division |
| Date | 23 October 2015 |
[2015] EWHC 2982 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Hos Honour Judge Peter Hughes QC
Sitting as a Judge of the High Court
Case No: HQ14X02197
Douglas Day QC and Peter Freeman (instructed by Kennedys Law LLP) for the Applicant
Stephen Field (instructed by McLarty's Solicitors) for the 1 st Respondent
Martin Hodgson (instructed by McLarty's Solicitors) for the 2 nd Respondent
Hearing dates: 15 October 2015
HHJ Peter Hughes QC:
Introduction
This is a contested application for permission to bring committal proceedings for contempt of court against the Respondents pursuant to CPR 81.18 in relation to statements made in support of a personal injury claim by the 1 st Respondent.
The point raised by the application, on which I am told there is no existing authority, is whether it is ever appropriate to bring committal proceedings when the alleged contemnor has already been tried and acquitted by a criminal court on the same facts. It is well established that the fact that someone has been punished for contempt of court is no bar to a subsequent prosecution based on the same facts. This case raises the corollary to that situation.
In the background to the application is a sense of deep concern, felt by those who insure defendants to personal injury claims, about the increasing number of false and inflated claims. Insurers feel that there is a need for it to be made clear that such dishonesty will not be tolerated by the courts and will be punished as a contempt.
The Personal Injury Litigation
The 1 st Respondent started proceedings in the Romford County Court in November 2009 against his former employers. He alleged that, two years earlier on the 10 th December 2007, he had had an accident in the course of his employment as a London bus driver. In this he said that he had fallen and banged his head. He claimed to have sustained some minor brain injury resulting in post concussional syndrome and causing him to suffer dizziness, prolonged headaches and blackouts.
The claim was supported by a medical report from a neurologist, Dr. Cockerell. He recorded that the 1 st Respondent had told him that he couldn't do anything around the house; that his son (the 2 nd Respondent) had to be with him all the time, and that he stayed in doors and did nothing. Dr Cockerell trusted and accepted what he was told. He concluded that it was likely that the 1 st Respondent had suffered some form of psychological functional seizure.
In July 2010 the Applicants' insurers admitted liability, for 90% of the claim, and made an interim payment of £50,000.
In support of the claim dealing with quantum, the Respondents each filed two witness statements. The statements were signed and verified by statements of truth. In each the Respondents sought to present the picture of a claimant who had been left seriously incapacitated and in need of constant care.
In his second statement of the 2 nd October 2012, the 1 st Respondent described himself as nervous to leave his home in case he blacked out. He said that he couldn't drive or do anything that involved heavy lifting and that he feared that he would never be able to work again.
His son, in his second statement dated the 1 st June 2012, said that he had to be with his father all the time "to keep an eye on him to stop him going out". He said that there had been no improvement in his father's condition, and that, if anything, it was getting worse. He said that he had to drive him about as his father no longer held a driving licence.
The timing of these statements is significant, as they cover a period when the 1 st Respondent was under surveillance arranged by the Applicant's insurers.
The initial period of surveillance covered two days in June 2012, the 27 th and the 28th. Before it was carried out the investigators made various database checks and ascertained that the 1 st Respondent had in the past been a director of a car wash business in Barnet and that the 2 nd Respondent was registered as a director of a car wash business trading in Hilldene Avenue, Romford.
Extensive still and video images over the two day period show the 1 st Respondent leading a seemingly normal life, leaving home in the morning, and attending at the Romford car wash premises. There he can be seen playing an active part in the business, driving vehicles, instructing others, and going to the bank alone on foot.
On the 15 th November 2012, only six weeks after his second statement, the 1 st Respondent flew from Luton to Skopje. He appears to have stayed in his native Kosovo until he took a return flight on the 5 th March 2013. Whilst he was away his solicitors submitted an up-dated schedule of loss dated the 4 th February 2013. The statement of truth was signed by his solicitor on his behalf. There is no suggestion that the solicitor was acting dishonestly, so he could not have been informed of his client's whereabouts.
In the schedule the 1 st Respondent is described as in need of constant care and supervision and unable ever to work again. The value of the claim is put at £637,308, including £65,000 for general damages, £175,768 for future loss of earnings, and £177,504 for future care.
It was at this stage that the Applicant's insurers showed their hand. In a robustly worded counter-schedule, they asserted that the claim was a sham, and that the 1 st Respondent, supported by his son, was intent on deceit.
The Applicants applied for the claim to be struck out as an abuse of the process of the Court, pursuant to CPR 3.4(2)(b), and for the repayment of interim payments, which by that stage totalled £125,000.
Having considered the surveillance evidence, the 1 st Respondent's solicitors withdrew from the case.
The strike out application came before His Honour Judge Collender QC in the Central London County Court on the 15 th August 2013. The 1 st Respondent appeared in person and Mr Freeman represented the Applicants. Judge Collender viewed the surveillance evidence, and had no hesitation in concluding that the claim was fraudulent. He rejected the 1 st Respondent's case that the two days of the surveillance were isolated incidents and capable of innocent explanation, with the words
"If that explanation had been true and was consistent with the disabilities suggested by the medical reports and detailed in the schedule of loss, then what one sees in the surveillance evidence would not have taken place."
Judge Collender struck out the claim, and ordered the repayment of the £125,000 plus costs on an indemnity basis. In addition, he directed that the case be transferred to the High Court to enable an application to be made for permission to bring contempt proceedings.
Subsequent events
Seven days after the hearing the 1 st Respondent went back to Kosovo. He appears to have returned to the United Kingdom briefly over Christmas and New Year, and made further journeys between the two countries in early 2014. When he returned on the 26 th March 2014, the Metropolitan Police were waiting for him. He was arrested the following day and remanded into custody.
On the 29 th May 2014, the Applicants filed their application pursuant to CPR 81.18. They did not do so earlier, I am told, because of the 1 st Respondent's absence from the country. The Respondents filed statements in answer to the application on the 21 st July 2014. In these they reiterated the claim, rejected by Judge Collender, that the personal injury claim was genuine. The 1 st Respondent asserted that he was continuing to suffer blackouts even whilst on remand in Wandsworth Prison.
On the 8 th September 2014, the 1 st Respondent stood trial at Southwark Crown Court on a single charge of fraud contrary to Section 1 of the Fraud Act 2006. The particulars of the offence alleged that between the 10 th December 2007 and the 15 th August 2013 he had
"made a false representation to [the Applicants] which was and which he knew was or might be untrue or misleading, namely, that he exaggerated the injuries that he claimed to have suffered in an industrial accident on the 10 th December 2007."
After a three day trial, he was acquitted by the jury on the 11 th September 2014. The verdict may seem surprising in the light of Judge Collender's observations, but these, of course, would not be before the jury, and the surveillance evidence, which I am told was. I have not seen a transcript of the proceedings, and it would not be right for me to comment further on the verdict.
The 2 nd Respondent was not prosecuted. Apparently this is because the police or CPS took the view that there was insufficient evidence against him.
A final twist to the tale is that there was a second attempt to prosecute the 1 st Respondent. This was a prosecution brought by the Department of Work and Pensions for fraudulently claiming benefits by not disclosing his true care and mobility needs. The case was based on the same evidence. It was stayed as an abuse of the process of the court by a judge sitting at Snaresbrook Crown Court.
The CPR and Part 81.18(3)
CPR 32.14 (1) provides –
"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 by a statement of truth without an honest belief in its truth".
CPR 81(18) (3) provides –
"A committal application in relation to a false statement of truth or disclosure...
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