Zurich Insurance Plc v David Romaine

Hearing date: 3 rd April 2019

Judgment Approved by the court for handing down

(subject to editorial corrections)

Introduction

This case raises issues about the correct approach to the grant of permission to bring committal proceedings in the context of false statements alleged to have been made by a personal injury claimant.

The Appellant appeals the order of Goose J dated the 8 ^th November 2018 refusing the Appellant permission under CPR 81.18(3)(a) to proceed with an application to commit the Respondent for Contempt of Court. The Appellant appeals the order with the permission of McCombe LJ granted on the 31 ^st January 2019.

At the hearing before us, the Appellant was represented by Mr David Callow. The Respondent appeared in person.

Background Facts

On 17 ^th November 2015, the Respondent (now aged 69) issued proceedings for noise-induced hearing loss (“NIHL”) against the Appellant's insured, Stanley Refrigeration Limited (“SRL”) and a third party known as Lee Beesley Mech & Elec Limited (“LBMEL”). The Respondent had been employed by LBMEL as a refrigeration engineer from 1965 to 1971 and by SRL as an apprentice engineer from 1978 to 1985. The Appellant is the relevant Employers' Liability insurer of SRL (a dissolved company) and is responsible for the defence of the Respondent's claim.

On 2 ^nd November 2015, the Respondent served Amended Particulars of Claim claiming damages limited to £5,000 against SLR and LBMEL for breach of statutory duty and/or negligence of SLR and LBMEL which had caused him “bilateral long-term noise-induced hearing loss of 19dB and mild tinnitus” (paragraph 10). The Respondent relied upon a medical report by Mr Hugh Wheatley dated 19 ^th October 2015, which was attached to his Particulars of Claim. The medical report stated that it had been compiled following an interview with the Respondent on 24 ^th September 2015 and stated that the Respondent “has not had any noisy hobbies” (paragraph 7.3). The Amended Particulars of Claim contained the following Statement of Truth (as required by CPR 22.1):

“ STATEMENT OF TRUTH

The Claimant believes that the facts stated in these Particulars of Claim are true. I am duly authorised by the Claimant to sign on his behalf.

Full name: Faisa Arshad

[signature]

Date: 02-11-15

Messrs Asons Solicitors, of 120 Bark Street, Bolton BL1SAX, who will accept service of all proceedings herein at the above address.”

SRL and LBMEL filed an Acknowledgement of Service contesting liability. They subsequently obtained the Respondent's medical records which suggested that the Respondent was a professional singer and a motorcyclist. Both of these activities were potentially relevant to issues of causation and loss.

By way of a Part 18 Request for Further Information, the solicitors for LBMEL asked the Respondent a number of questions regarding these activities, in particular whether he was or had been a professional singer, whether he played an instrument, whether he performed with a live band and, if so, the frequency with which he practiced.

On 1 ^st August 2016, the Respondent served his Reply to the Part 18 Requests which stated as follows:

“18. It is noted that in the Claimant's medical records, entry dated 2012, it states that the Claimant is a professional singer with a band. Please could the Claimant confirm if he is/was a professional singer:

Response: I was never and have never been a professional singer. I worked for different companies for a living. The mention of a professional singer came about when visiting the doctor for a throat infection I mentioned that I couldn't sing anymore. He must have made the assumption that I sang professionally and documented this in my medical records but this is not the case.

19. Does the Claimant play an instrument;

Response: I used to play the Acoustic Guitar for soft music when I was about 19 years old. I sometimes do this on a very rare occasion now and again but it is not noisy by any means.

20. Does the Claimant perform with a live band;

Response: No.

21. How often does the Claimant practice;

Response: occasionally.”

The Respondent's Part 18 Response contained the following Statement of Truth:

“ STATEMENT OF TRUTH

I the Claimant believe that the facts stated in this statement are true.

Full name: Mr David Romaine

[electronic signature of David Michael Romaine]

Date: 13.06.2016”

In a witness statement in support of his claim dated 27 ^th June 2016 (and electronically signed on 1 ^st August 2016), the Respondent stated:

“6. I do not ride a motorcycle, nor do I participate in or attend motorcross or motorsport events.

7. I understand it has been noted in my GP records that I am a professional singer. This is incorrect as I have never been a professional singer. I believe the mention of a professional singer came about when visiting the doctor for a throat infection and I mentioned that I could not sing anymore. The doctor must have made the assumption that I sang professionally and documented this in my medical records. I used to play the acoustic guitar playing soft music when I was about 19 years old. I sometime do this on a very occasion now and again but it not noisy by any means.

8. To the best of my knowledge I do not participate in any other pastime, hobby or activity, which may have contributed to any hearing difficulty or medical issues relating to hearing loss or tinnitus.”

The Respondent's witness statement Response contained the following Statement of Truth:

“ STATEMENT OF TRUTH

I the Claimant believe that the facts stated in this statement are true.

Full name: Mr David Romaine

[electronic signature of David Michael Romaine]

Date: 01.08.2016

Asons Solicitors”

In the light of the discrepancies between the Claimant's medical records and the Claimant's account, the Appellant's solicitors commissioned an intelligence report on the Respondent. The findings of that report are contained in the witness statement of Mr Lee Kay dated 16 ^th February 2017. Mr Kay conducted searches on the Claimant's Facebook page which revealed the following:

(1) The Respondent had ridden motorcycles;

(2) The Respondent had an interest in fast motorcycles, fast cars and guitars;

(3) The Respondent performed in a live rock-and-roll band called the “501's”;

(4) The Respondent played an electric guitar when performing with the live band and was the lead singer;

(5) The Respondent's live band advertised its services to perform at venues;

(6) The Respondent's live band performed regularly both at pubs, clubs and larger events;

(7) The Respondent rehearsed regularly.

Mr Kay's researches also revealed that the Respondent's band has its own website “501's@501sRocking”. The website contained numerous still images and video clips of the band and their live performances. The website contained a logo and legend reading “501's Rock n Roll Live Band” with a phone number for bookings and contained the following details:

“The 501's are a three piece rock n roll and rockabilly band.

Two of them met through their passion of 50's rock n roll and the music of that time.

Initially the 501's lead guitarist and vocalist David Romaine started out as a soloist and eventually joined a folk band where he played the big pubs and clubs all over the midlands. He shared the stages with the likes of Jasper Carrot and The Slade, but after a long time away from the music scene he came back with a new formed affection for rock n roll and rockabilly.

Alongside Dave Hawkins who had also had a long standing love affair with the 50's decided to learn the double bass. After some time of jamming in few music rooms the 2 became more and the 501's began to gig regularly on the rock n roll scene.”

It appeared, therefore, to the Appellant insurers that the Respondent's account — that he had no hobbies or activities which were potential sources of noise exposure — was untrue.

The Appellant served Mr Kay's evidence upon the Respondent and the Third Party along with notice that an application to strike out would be made in due course. The Respondent was also advised in correspondence that if he sought to discontinue his claim, the Appellant would make an additional application to set aside the notice of discontinuance and/or seek a trial on the issue of his fundamental dishonesty.

On 14 ^th March 2017, the Appellant made an application to strike out the Respondent's claim as a result of the Respondent's dishonesty.

On 21 ^st March 2017, the Appellant advised the Respondent's solicitor, Messrs Asons, that an application had been made to strike out the claim. Later the same afternoon, the Respondent served a notice of discontinuance.

On 29 ^th March 2017 Messrs Asons were the subject of interventions by the Solicitors Regulatory Authority. Subsequently, on 23 ^rd June 2017, Messrs Coops Law, who took over the Respondent's claim, were also the subject of interventions by the Solicitors Regulatory Authority.

On 12 ^th September 2017, the Appellant issued and served committal proceedings on the Respondent by way of a Part 8 claim form contending that the Respondent was guilty of Contempt of Court pursuant to CPR 81.17(1)(a) (‘Making a false statement in a document verified by a statement of truth’ contrary to CPR 32.14).

On 8 ^th November 2017, the Respondent provided a witness statement opposing committal. He drew up the statement...