Kirk v Walton
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MRS JUSTICE COX DBE,Mrs Justice Cox,Mr Justice Coulson |
| Judgment Date | 03 April 2009 |
| Neutral Citation | [2009] EWHC 703 (QB),[2008] EWHC 1780 (QB) |
| Docket Number | Case No: 4SK04891,Case No: 4SK 04891 |
| Court | Queen's Bench Division |
| Date | 03 April 2009 |
[2008] EWHC 1780 (QB)
THE HONOURABLE MRS JUSTICE COX DBE
Case No: 4SK04891
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Dr Braslavsky QC (instructed by Messrs. Brian Barr, Solicitors) for the Claimant
Mr Featherby QC (instructed by Messrs. Cogent, Solicitors) for the Defendant
Hearing dates: 5 th June 2008
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an application by the Defendant, through her insurers, for permission to bring proceedings against the Claimant for contempt of court in making false statements in documents verified by statements of truth, and without an honest belief in the truth of those statements. It arises in the following way.
On 10 August 2004 the Claimant, Joanne Kirk, now aged 45, issued proceedings against the Defendant in Stockport County Court. She claimed damages for personal injuries sustained in a minor road traffic accident, on 14 September 2001, following a collision with the rear of the Claimant's car caused by the Defendant's negligent driving. Liability was not disputed.
The Claimant suffered what is often described as a “rear shunt injury” in the accident. The particulars of injury set out in the Particulars of Claim referred to the Claimant, who had a history of back problems, having suffered neck pain radiating into her shoulders; and to her symptoms remaining severe and then deteriorating such that, in October 2002, she ceased altogether her work as an administrator in a university. In January 2005 her solicitors served a schedule of damages, in which the Claimant was seeking compensation in a total figure of over £800,000. Substantial sums were claimed for past and future loss of earnings and for care and assistance.
On 16 February 2005, the Defendant's representatives paid £25,000 into court and offered to repay to the Compensation Recovery Unit the state benefits (approximately £9,000), which had by then been paid to the Claimant as a result of the injuries she alleged had been caused by the accident.
Directions were given for trial and assessment of damages in the usual way. Medical experts in orthopaedics and rheumatology were instructed by both parties and reports were exchanged. In November 2004 a consultant physician and rheumatologist, Dr McKenna, instructed on behalf of the Claimant, considered that the Claimant had developed fibromyalgia, triggered by the accident, and that she was significantly disabled. Dr Bernstein, consultant physician and rheumatologist instructed on behalf of the Defendant, considered in November 2005 that she did not have fibromyalgia when he examined her and that there was evidence of exaggeration, which raised concern as to whether that diagnosis had ever been warranted.
Meanwhile, the Defendant's insurers carried out further investigations into the Claimant's complaints, including video surveillance undertaken by enquiry agents showing the Claimant going about her daily life. The Defendant's insurers contend that these investigations revealed that the Claimant's various statements, in documents verified by a statement of truth, as to the nature and effect of her injuries and disabilities were untrue.
The DVD recordings obtained, taken on various days in March 2005 and then on dates between September and December 2005, were disclosed on 10 March 2006. In the absence of a substantive response from the Claimant the Defendant then served a Part 18 Request upon her, which included questions about the various statements she had made and the contents of the recordings. The Claimant, after initially stating that she was too unwell to provide answers, did so on 26 September 2006, after the Defendant had threatened to apply for an order that she respond to the Part 18 Request. The Defendant's medical experts were asked to consider the DVD recordings and to comment upon them. They did so and then provided further reports, which are in the bundle before me. It is unclear whether the Claimant's medical experts were asked to consider them or, if they did, whether they provided any comments. No further reports have been disclosed or included in the bundle.
The action was then stayed to enable negotiations to take place. On 1 December 2006 the Defendant's solicitors offered terms of settlement only on the basis that the Claimant accepted the sum in court, in full and final satisfaction of her claim, and that she paid all her own and the Defendant's costs from 21 days after the payment in. After further correspondence going to the issue of costs the action was eventually settled on these terms, a consent order to this effect being made on 26 June 2007, with the sum of £25,000 ordered to be paid out to the Claimant's solicitors only after payment of the Defendant's costs.
On 20 November 2007 the Defendant's solicitors applied for the action to be transferred to the High Court and for permission to bring proceedings against the Claimant for contempt of court, in making false statements without an honest belief in their truth. Pursuant to the order of DDJ Brooks on 28 December 2007 the case was transferred to the High Court for a hearing to determine whether permission should be granted. Appropriate directions were given and that hearing took place before me on 5 June 2008.
Following the conclusion of counsels' oral submissions, it was agreed that I should watch all the DVD recordings myself before determining whether to grant permission. I therefore reserved judgment in order to undertake that task. In addition to the DVDs already included in the trial bundle a further DVD, relating to recordings made in October 2006, was provided at the hearing. It was agreed that I should watch this recording too, without prejudice to the complaints as to incomplete disclosure by Dr Braslavsky QC, on behalf of the Claimant.
The Relevant Background
It is not in dispute that the road traffic accident which gave rise to this claim was a minor one. Nor is it in dispute that, as the report of Mr Getty of 8 December 2005 indicates (the Defendant's orthopaedic expert), this Claimant had a pre-accident history of musculo-skeletal complaints.
Before the DVD recordings were disclosed in March 2006 the Claimant had been examined by a number of medico legal experts, namely orthopaedic/spinal consultants and consultant rheumatologists, to each of whom she had given a detailed history and description of her symptoms. In his report of 8 December 2005, Mr Getty could identify no physical cause for the Claimant's symptoms, and he could not explain her marked disability “solely on the basis of a so called whiplash-type injury to her neck”. He indicated that he would revert to the rheumatological experts in this matter (see paras 20.11 – 20.14). Mr Ross (consultant spinal surgeon instructed on behalf of the Claimant) observed that it was difficult to understand why her symptoms were persistent; and that there were no physical findings to explain her presentation in orthopaedic terms. He advised that rheumatological opinion was necessary.
Dr McKenna concluded, in his report of 24 September 2004, that:
“Mrs Kirk currently appears to be significantly disabled. I feel that her perception of her disability is greater than her physical capability but this is a feature common to patients with fibromyalgia. However it is now more than three years since the road traffic accident and despite treatment she remains disabled without any significant improvement. Although she does not appear to have any previous significant psychological illness that would indicate a poor prognosis, persistent significant disability at this stage indicates a poor prognosis. In my opinion it is unlikely that she will be able to return to part-time employment within a five year period.
In summary Mrs Kirk is a 41 year old woman with a previous history of mechanical back pain who has developed fibromyalgia triggered by a road traffic accident on 14 September 2001. She has developed significant disability as a result of the fibromyalgia which has persisted and it is unlikely that she will be able to return to her previous employment within the medium term.”
Dr Bernstein, in his report of 2 November 2005, referred to Dr McKenna's findings and then said as follows:
“My own examination just over a year later showed Mrs Kirk moving independently and now not exhibiting the tenderness of fibromyalgia. Indeed, Mrs Kirk described or claimed tenderness and four of the eighteen tests points but did not show the usual nonverbal signs of tenderness (wincing or withdrawal). I should add that I did not find muscle wasting as one might expect with a very inactive life.
In my view Mrs Kirk does not have fibromyalgia now, and the evidence of exaggeration gives concern whether she had fibromyalgia even in 2003–2004, when my colleagues eventually reached this diagnosis.”
He then concluded that:
“….Mrs Kirk's condition in 2002/3 after the road traffic accident of September 2001 can be seen largely as an exacerbation or exaggeration of her previous symptoms. If there was an exacerbation it arose too late to be attributable to the accident.
As I see Mrs Kirk now, exaggeration is the major and probably dominant feature. I believe Mrs Kirk's condition is now no worse than before the accident, and she has the same capacity for paid employment and household duties. Mrs Kirk has not developed a new illness of fibromyalgia.”
The Claimant made a number of statements about her injuries, symptoms and disabilities in documents which have been verified by statements of truth...
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