Liverpool Victoria Insurance Company Ltd v Dr Asef Zafar
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton,Hamblen LJ,Holroyde LJ |
| Judgment Date | 19 March 2019 |
| Neutral Citation | [2019] EWCA Civ 392 |
| Docket Number | Case No: A2/2018/2591 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 March 2019 |
[2019] EWCA Civ 392
THE MASTER OF THE ROLLS
Lord Justice Hamblen
and
Lord Justice Holroyde
Case No: A2/2018/2591
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Garnham
Claim no HQ16X00032
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Robert Weir QC and Mr Paul Higgins (instructed by Horwich Farrelly) for the Appellant
Mr Jonathan Goldberg QC and Mr Senghin Kong (instructed by Goldkorns Solicitors) for the Respondent
Hearing dates: 12th February, 2019
Approved Judgment
Sir Terence Etherton MR, Hamblen LJ and
On 5 th October 2018, after a lengthy contested hearing, Garnham J found that ten grounds of contempt of court had been proved by the Appellant, Liverpool Victoria Insurance Company Limited, against the Respondent, Dr Zafar. He ordered that the Respondent be committed to prison for a period of six months, but directed that execution of the order for committal be suspended for a period of two years.
The Appellant appeals against that sentence by permission of the judge himself. Unusually, the appeal is brought with a view to increasing the sentence, on the ground that it is wrong in principle and so lenient as to fall outside the range of sentences reasonably open to the judge.
The facts:
The Respondent was at all material times employed by the NHS as a registered medical general practitioner. He also had a private practice in medico-legal work, which he conducted at a number of different locations. In his private practice he frequently examined claimants in low-value personal injury claims, and he had developed a system, using appropriate software, for the speedy production of medical reports in such cases. His evidence was that he was able both to examine his patient and to produce a report within about 15 minutes. He charged a fixed fee for the preparation of such reports. No further charge was made if it later emerged that an amendment to a report was necessary (for example because a factual detail was inaccurate). In such circumstances the Respondent would often delegate to one of his staff the work of making the necessary amendment to the report.
On the days which he devoted to his private practice, the Respondent worked to a tight schedule and saw many claimants. In all, he produced about 5,000 reports a year, with an annual gross income from this work of some £350,000.
On 3 rd December 2011 Mr Mudassar Iqbal was involved in a road traffic accident. The driver of the other vehicle was insured by the Appellant. Mr Iqbal wished to claim compensation for his injuries and loss, and approached a claims management business, On Time Claims. A solicitor Mr Kamar Abbas Khan, of TKW Solicitors (“TKW”), was then instructed to act on his behalf in a claim against the other driver.
The Respondent was instructed (by TKW, who operated for this purpose through Med-Admin Limited – “Med-Admin”) to prepare a medico-legal report. He examined Mr Iqbal on 17 th February 2012, about 11 weeks after the accident. He produced his report (“the original report”) at the time of the examination, dictating it in the presence of Mr Iqbal and signing it electronically. In this report, he said that Mr Iqbal had developed pain and stiffness in his neck on the day of the accident: those symptoms were due to whiplash, but they resolved one week from the day of the accident. He recorded that Mr Iqbal had taken analgesia four hours after the accident, and that “the treatment finished one week later”. The Respondent said that Mr Iqbal was “fully recovered from the injuries sustained in the accident”, and that on musculoskeletal examination he had found Mr Iqbal's neck to be normal. He expressed the opinion that Mr Iqbal's injuries and recovery period were entirely consistent with his account of the accident. Under the heading “Prognosis” he wrote that Mr Iqbal “has fully recovered from the injuries sustained in the accident”.
In a section of his report headed “Declaration”, the Respondent stated that he understood that his overriding duty was to the court. He stated that he was aware of the requirements of Part 35 of the Civil Procedure Rules, and of the associated Practice Direction (to both of which we refer below). His declaration continued:
“I have done my best, in preparing this report, to be accurate and complete. I have mentioned all matters which I regard as relevant to the opinions I have expressed. All of the matters on which I have expressed an opinion lie within my field of expertise. I have drawn to the attention of the court all matters, of which I am aware, which might adversely affect my opinion. Wherever I have no personal knowledge, I have indicated the source of factual information. I have not included anything in this report, which has been suggested to me by anyone, including the lawyers instructing me, without forming my own independent view of the matter.”
Beneath that declaration, under the heading “Statement of Truth”, the Respondent stated:
“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.”
At the foot of the page on which the declaration and statement of truth appeared there was a further note in which the Respondent again asserted that his report was based on his completely independent opinion.
The original report was sent to TKW. According to a note in their files, Mr Iqbal rang the solicitor Mr Khan on 22 nd February 2012 to say that he was not happy with the prognosis set out in the report because he had told the Respondent that his acute injuries had settled in 1–2 weeks but that he had ongoing symptoms of neck, shoulder and wrist pain.
Mr Khan purported to have written a letter to the Respondent on that same day, in which he said that that there may have been a misunderstanding: Mr Iqbal had reported a continuing dull constant pain in his neck, pain symptoms in his shoulder and right wrist pain of moderate severity. He asked the Respondent to review his notes and, if he felt it appropriate, to prepare an amended report complying with Part 35. However, the judge found that no such letter was in fact written on that date, and that Mr Khan fabricated the supposed letter many months later.
There was email correspondence which the judge analysed in careful detail. For present purposes, it suffices to note the following. On 24 th February 2012 Mr Khan sent an email to Med-Admin, which Med-Admin forwarded to the Respondent, saying that Mr Iqbal still had moderate to severe pain in his neck and shoulders. He continued:
“I should be grateful if you could review your notes from the examination in light of the following: given that our client is suffering severe to moderate pain in his neck and upper back, now over two months from the date of the accident, is it likely that he will recover over the next 6–8? If so, can you please amend your report in respect thereof. Given that our client is still suffering pain related symptoms can you confirm whether he is likely to benefit from physiotherapy.”
One of the Respondent's secretaries offered to make amendments if the Respondent wished him to do so. In answer to an enquiry by the Respondent, the secretary confirmed that the only symptoms noted by the Respondent had resolved after one week and that, on examination, there was no restriction. He asked if that latter record also needed to be altered, and noted that it was the solicitors who suggested a 6–8 month period and physiotherapy.
Later that same day, 24 th February 2012, a second report (“the revised report”) was produced by the Respondent or on his behalf. There had been no further examination of Mr Iqbal, and it does not appear that the Respondent had any significant notes of his initial examination beyond what was recorded in the original report. As the judge noted, the revised report appeared superficially to be identical to the original report. It bore the same date, 17 th February 2012, and contained nothing to indicate that there had been a previous report or that this was an amended report. We would add that it contained an identical declaration and statement of truth, and an identical further note at the foot of the relevant page.
The revised report did however differ very significantly from the original report. It recorded that symptoms of moderate pain and stiffness in Mr Iqbal's neck and shoulder had developed on the day of the accident and had not yet improved, and that Mr Iqbal was still taking analgesia. It gave a prognosis that pain in the right wrist, and pain and stiffness to the neck and shoulder, “will fully resolve between 6–8 months from the date of the accident”.
The revised report was sent, via Med-Admin, to TKW. Mr Khan commenced County Court proceedings on behalf of Mr Iqbal, claiming damages for his personal injuries and relying upon the revised report. On 14 th August 2013 a paralegal working for TKW prepared a trial bundle and sent it to those representing the other party. Unfortunately for the Respondent, and for Mr Khan, the paralegal mistakenly included in the bundle the original report rather than the revised report. Had that mistake not been made, the Appellant and the court would not have known of the existence of the original report and the claim would have been heard and determined on the basis that the revised report represented the Respondent's independent opinion based on his examination of Mr Iqbal on 17 th February 2012. As it was, the trial was adjourned and the judge gave appropriate directions which led...
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