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Royal & Sun Alliance Insurance plc v Fahad (2014)

It was in the public interest to bring committal proceedings against a person who had allegedly made false statements during a claim for damages where there was a strong prima facie case that the road traffic accident had been fabricated. Application for relief from sanctions refused on the basis that the breach was not isolated.

Background

Mr Fahad (F) brought a claim against Royal & Sun Alliance Insurance plc (R) for damages allegedly arising out of a road traffic incident in March 2009. It was alleged that their insured driver had been at fault for the incident. Evidence was obtained suggesting that F and the insured knew each other and that the incident had been contrived, something that was denied by F.

The matter went to trial in October 2012 at Bromley County Court; F represented himself after his solicitors had come off record; the insured failed to attend trial as did another claimant. The Judge at trial found that F and the Insured were known to each other prior to the alleged incident and that the incident was contrived. F’s claim was dismissed and he was ordered to repay a previous interim payment and pay R’s costs of the action.

R thereafter made an application pursuant to CPR Part 81 to commit F for contempt of Court. F instructed new solicitors. F, who had failed to comply with CPR r.81.14(5), namely F failed to give seven days' notice in writing of his intention to attend the instant hearing, or provide a written summary of his submissions as required by CPR r.81.14 (5). He thus lost his right to be heard. Nevertheless the court allowed F to make submissions in respect of R’s application. The day before the hearing F applied for relief from sanctions.

R submitted that there was ample evidence from which permission should be granted and that the false statements had been proved to be false at trial. In the present case it was alleged that the Respondent’s particulars of claim, his witness statement and his reply to a Part 18 request for further information contained the false statements. It was submitted that it was in the public interest to bring contempt proceedings as it was not a case of an exaggerated claim, but one that had been entirely fabricated, and that F had also failed to pay costs orders made against him.

F submitted that he had faced language problems at trial, as English was not his first language. With regard to relief from sanctions, F submitted that he had not given seven days notice for good reason as he had been in Iraq and was suffering from ill health.

Findings

Hearing the application for leave to bring contempt proceedings, Spencer J held:

  • A person was only guilty of contempt if a statement was false and he knew it to be so. Bringing proceedings had to be in the public interest, taking into account whether there was a strong case, whether the alleged false statements made were significant in the proceedings, whether the person understood the likely effect of the statements, and considering the deterrent effect of contempt proceedings.

  • Only limited weight should be attached to the likely penalty, and contempt had to be proved to the criminal standard, Barnes (t/a Pool Motors) v Seabrook (2010) EWHC 1849 (Admin) applied. F's arguments went to the merits of the application rather than whether permission should be granted. There was a strong prima facie case but it was not the job of the instant court make findings. It was important to deter false claims. The public interest not only justified granting permission, but demanded it. There were different types of fraudulent claims; one where an accident had occurred but it had been exaggerated, and one where there had been no accident at all. That latter category was far more serious, Liverpool Victoria Insurance Co v Bashir (2012) EWHC 895 (Admin) applied.

  • Given that outcome and that F's submissions had been considered, it made no practical difference if F was granted relief from sanctions, but it was relevant to costs. The breach had been serious. F's medical notes showed that he was no longer unwell. He had been in the United Kingdom shortly before the deadline and in any event he could have emailed or telephoned from Iraq. The breach had not been an isolated occurrence. Relief from sanctions was refused. R's application to bring committal proceedings was granted, F's application for relief from sanctions was refused.

Comment

  • Insurance companies will naturally wish to take a strong stand against those presenting fraudulent claims, especially those claims brought by organised criminals. Where cases are successfully defended to trial, it is not always possible to recover defence costs and commencing proceedings for contempt might be the only available deterrent.

  • CPR r.32.14 sets out the consequences of making false statements: “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.”

  • Careful consideration should be given as to the evidential burdens that will need to be discharged by the Applicant if they are to be ultimately successful. Contempt must be proved to the criminal and not the civil standard. It should also be borne in mind that there are two stages to the process; the first of which is an application for permission to bring committal proceedings and, if permission is granted, the second stage is the committal hearing itself.

  • Helpful guidance can be found in Barnes v Seabrook (2010) and the Court of Appeal's decision in KJM Superbikes Ltd v Hinton [2008] EWCA Civ 1280 which set out the considerations which the court must take into account when assessing whether it is, in fact, in the public interest for contempt proceedings to be brought:

- A person who makes a statement verified with a statement of truth or a false disclosure statement is only guilty of contempt if the statement is false and the person knew it to be so when he made it.

- It must be in the public interest for proceedings to be brought. In deciding whether it is the public interest, the following factors are relevant:

    1. The case against the alleged contemnor must be a strong case (there is an obvious need to guard carefully against the risk of allowing vindictive litigants to use such proceedings to harass persons against whom they have a grievance);

    2. The false statements must have been significant in the proceedings;

    3. The court should ask itself whether the alleged contemnor understood the likely effect of the statement and the use to which it would be put in the proceedings;

    4. “The pursuit of contempt proceedings in ordinary cases may have a significant effect by drawing the attention of the legal profession, and through it that of potential witnesses, to the dangers of making false statements. If the courts are seen to treat serious examples of false evidence as of little importance, they run the risk of encouraging witnesses to regard the statement of truth as a mere formality.”

    5. The court must give reasons but be careful to avoid prejudicing the outcome of the substantive proceedings;

    6. Only limited weight should be attached to the likely penalty;

    7. A failure to warn the alleged contemnor at the earliest opportunity of the fact that he may have committed a contempt is a matter that the court may take into account.

Contact

For further information please contact Stephen Gilroy, Associate on 0151 907 3331.

By Stephen Gilroy

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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