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Committal proceedings in public interest for potentially dishonest EL claimants

Committal proceedings in public interest for potentially dishonest EL claimants

09.07.2019

John McGowan

John McGowan Litigation Manager

Lucy Espley

Lucy Espley Senior Associate

Zurich Insurance Plc v David Romaine [2019] EWCA Civ 851

This Court of Appeal case considered the correct approach to the grant of permission for the bringing of committal proceedings against a person alleged to have made false statements in a personal injury claim. In doing so, the Court of Appeal overturned the lower Court’s decision, holding that the judge’s approach had been flawed and that the public interest was clearly in favour of granting permission for committal proceedings to be brought.

Background

The Respondent, Mr David Romaine, acted as a litigant in person in relation to the committal application, but he had been represented by solicitors in proceedings issued in 2015 for noise induced hearing loss (“NIHL”) against two refrigeration companies for whom he had worked many years previously as an engineer. The Appellant, Zurich Insurance, was the EL insurer of one of the companies and was responsible for responding to Mr Romaine’s claim.

In support of his claim Mr Romaine relied on a medical report served with his Particulars of Claim which stated that he had no “noisy hobbies” a factor relevant to issues of causation and loss of hearing. The Particulars of Claim contained a Statement of Truth signed by his solicitors on his behalf, stating that Mr Romaine believed that the facts stated were true. Zurich contested liability and subsequently obtained Mr Romaine’s medical records which suggested that he had been both a professional singer and a keen motorcyclist, activities which might have caused or contributed to his NIHL. In response to Zurich’s requests for further information Mr Romaine denied that he was a singer, a denial verified by an E-signed Statement of Truth. Mr Romaine also served a Witness Statement denying that he had been a professional singer or had participated in motorsport events. This was also verified by a Statement of Truth, again with his electronic signature.

In light of the discrepancies between Mr Romaine’s statements and his medical records Zurich commissioned an intelligence report which revealed that Mr Romaine had not only been a keen motorcyclist, but had performed in a rock band which rehearsed and performed regularly. Zurich disclosed this evidence and applied to have Mr Romaine’s claim struck out on grounds of dishonesty. This prompted Mr Romaine (by now acting in person following SRA interventions against both firms of solicitors who had represented him) to discontinue his claim with immediate effect. However, Zurich then sought court permission to commence committal proceedings on the basis that Mr Romaine was guilty of contempt of court for making false statements.  Zurich’s application was heard on paper, but dismissed by Mr Justice Goose, despite the judge accepting that there was good evidence that Mr Romaine had made false statements deliberately and dishonestly. The Judge made that finding notwithstanding Mr Romaine’s submissions that the documents containing the relevant statements were prepared, signed and served by his solicitors without his knowledge or approval. However, the judge took account of the fact that Mr Romaine had not been warned at the earliest possible stage that he was at risk of being committed for contempt of court and, further, that he had discontinued his claim at a relatively early stage. Accordingly, the judge decided that committal proceedings were not in the public interest and refused permission, a decision which he confirmed on a subsequent oral hearing.

The Court of Appeal’s decision

The Court of Appeal overturned the judge’s refusal and granted permission to Zurich to proceed with an application to commit Mr Romaine for contempt of court. The key issue was not whether a contempt had been committed ( the judge had accepted there was a strong prima facie case that it had), but rather was it in the public interest for proceedings to be brought to establish whether there had been a contempt and, if so, what penalty should be imposed.

The Court of Appeal disagreed with the judge’s approach regarding the relevance of the failure to warn Mr Romaine that he may have committed a contempt of court and found that although such a failure may be a relevant factor in some cases it was not in this case where Mr Romaine as the person alleged to have been in contempt had commenced the claim.

The Court of Appeal also found that the judge was wrong to treat Mr Romaine’s immediate discontinuance of his claim as a significant factor in deciding to refuse permission because of the risk that unscrupulous claimants/lawyers would not be deterred from issuing high volumes of low value claims if those rejected as fraudulent could simply be abandoned without sanction.

It is notable that the low value of the claim (£5000) was not considered to be a relevant factor against granting permission, nor was Mr Romaine’s age, poor health and responsibility as a foster parent. The Court ruled that these personal circumstances were matters for the committal hearing and were not relevant to whether permission should be granted in the first place. The same was said of Mr Romaine’s submissions that the statements had been made by his solicitors without his knowledge or approval. These were points that might be relevant to questions of mitigation and sanction, but did not require detailed consideration at the permission stage.

False statement in court documents are public wrongs which offend the proper administration of justice and should, in appropriate cases, be marked by the public remedy of committal proceedings.They are a particular mischief in NIHL claims where insurers are dependant on the veracity of a claimant’s evidence given the inevitable passage of time, so it was held to be both proportionate and in the public interest to allow committal proceedings to be brought against Mr Romaine.

Comment

Employers’ Liability insurers should be encouraged by the Court’s approach in this case. Judges are taking an increasingly hard line against dishonest claimants and this decision adds to the now significant body of cases which demonstrate that the judiciary will not allow the insurance industry to be seen as a soft touch by dishonest litigants. To make a false claim, however small, is to take a risk that may end in committal proceedings and a prison sentence.

This article was co-authored by Clare Birchenhough, Second year trainee solicitor

Article authors:

John McGowan Lucy Espley

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