Caerphilly County Borough Council v Wells [2012] EWHC 1905 (Admin)

[2012] EWHC 1905 (Admin)Case No CO/1124/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Cardiff Civil Justice Centre
2 Park Street
Venue Cardiff CF10 1ETDate 11 th October 2012
B e f o r e:
MR JUSTICE HICKINBOTTOM
MR JUSTICE WYN WILLIAMS
Between
CAERPHILLY COUNTY BOROUGH COUNCILClaimantLEON WELLSDefendant
Digital Audio Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Compton appeared for ClaimantMr Goodman appeared for Defendant
J U D G M E N T

MR JUSTICE WYN WILLIAMS: This is the judgment of the court.

[2]By a claim form issued on 23rd December 2009 the respondent commenced proceedings against the applicant in which he claimed damages for personal injury allegedly sustained on or about 26th December 2006. The personal injury was said to be the consequence of negligence and/or breach of statutory duty on the part of the applicant. In summary, the respondent alleged that he had fallen as a consequence of tripping or slipping on broken steps for which the applicant was legally responsible.[3]In due course the case was listed to be heard as a trial on 3rd October 2011. Just before it was due to begin the respondent sought leave to discontinue the proceedings. Leave was granted on the basis that the respondent paid the applicant's costs of those proceedings.[4]It seems to us to be clear that the respondent discontinued the proceedings because by then it had become apparent that there were parts of his claim which were fraudulent. By that we mean that there were aspects of the evidence which he proposed to adduce which were dishonest.[5]On 2nd February 2012 the applicant applied to this court for permission to bring contempt proceedings against the respondent. Permission was granted on 15th February 2012. A claim form followed in which five allegations of contempt were set out. It is as well to recite them in this judgment. They were(i) was that the respondent sustained a large bucket handled tear to the medial meniscus in his left knee as a result of an accident which occurred on 26th December 2006 at around 8.00 am when he was out jogging on Charles Street, Rhymney, Gwent, whereas the truth was no such accident ever took place;(ii) that he suffered damage and losses including a loss of earnings as a result of the negligence or breach of statutory duty of the applicant, whereas the truth was no such damage and losses were sustained;(iii) that he had fabricated a witness, Leon Kale, to the immediate aftermath of the accident, whereas the truth was that the witness was not present;(iv) that he fabricated a further witness, Nathan Pullen, who allegedly drove him and dropped him outside his house, whereas the truth was that no such lift was given by Nathan Pullen as he was at his partner's home, some miles away, following the death of his grandfather on Christmas day;(v) despite allegedly suffering injury in a road traffic accident, 15 days before the index accident (in respect of which he also brought a claim for damages for personal injury) the respondent made no mention of these earlier injuries which significantly overlapped with the injuries in the index accident.[6]Following the issue of that claim form there were various hearings before this court including one before me in which directions were set for a trial. A pre-trial review was fixed for 24th January 2013. On that date the respondent admitted a number of allegations of contempt. The judge hearing the pre-trial review was Burton J and we have been provided with a document which sets out the extent of the admissions which the respondent made before the learned judge. Essentially, he admitted three of the five particulars to which we have referred, namely particulars 3, 4 and 5. The document with which we have been supplied reads:
"The defendant replies to the allegation of contempt as set out in the claim form as follows: (iii) he admits that the evidence of Leon Kale was fabricated. (iv) he admits that the evidence of Nathan Pullen was fabricated. (v) he does not dispute that he did not mention the earlier road traffic accident to Dr Sharma."
It is apparent that on the basis of those admissions the applicant was content not to proceed with the first two allegations of contempt which had been specified in the claim form.[7]It seems to us that allegations (i) and (ii), that is those which were not pursued are particularly serious. We say no more about them, save to note that it is no longer permissible for this court to proceed on the basis that the respondent had completely made up a fraudulent claim. That is not now the nature of the contempt with which we are dealing. We are now dealing with a situation in which the respondent may have had a perfectly genuine claim for damages but he sought to buttress that claim by fabricating two witnesses and omitting to inform a consultant orthopaedic surgeon of relevant facts relating to his medical history.[8]We deal first with our view of that last allegation, the failure to mention the earlier road traffic accident. Of course it is to be deprecated but standing alone we do not consider that to be a particularly serious aspect of this case. The plain fact is that the earlier road traffic accident was properly disclosed to his general practitioner at the time it occurred and it appeared in the general practitioner's notes. Accordingly it was obvious and clear that anybody investigating this accident would quickly ascertain the fact of the road traffic accident, notwithstanding the respondent's failure to mention it specifically to Dr Sharma.[9]The serious aspect of this case, as is acknowledged by Mr Goodman on behalf of the respondent, relates to the two allegations admitted of fabricating witnesses. We need to explain what we mean by that. In his initial witness statement in support of the claim the respondent described how almost immediately after the fall he managed to take himself back to the top of the steps upon which he had allegedly fallen. His statement continued:
"As I was resting a man who I know as Leon Kale had seen me in difficulty and shouted to me from across the road. He clearly saw that I was in distress and asked if I needed any help. I told him that my friend lived close by and that I would get him to help me."
In due course Mr Kale made a witness statement essentially confirming that account.[10]Mr Kale had seen no such thing. He had been induced to make his witness statement by the respondent, which was a very serious contempt on the part of the respondent and also put Mr Kale at very significant risk himself of contempt proceedings. We should observe that Mr Kale was disposed to persist in his wrongful account when first asked about it by an investigator on behalf of the applicant. However it is also correct to say that very shortly thereafter Mr Kale resiled from his false account.[11]That deals with the allegation relating to Mr Kale. The second person, Mr Pullen, was not named in the applicant's first witness statement but subsequently named in later statements. When Mr Pullen was challenged by an investigator on behalf of the applicant, he immediately said that he knew nothing of the alleged accident suffered by the respondent.[12]In summary therefore the respondent made up two witnesses who were said to be material to his alleged accident with a view to bolstering the strength of his case. There have been a number of cases in this court which have dealt with this or analogous situations. This court has repeatedly said that making up falsehoods of this kind must be treated extremely seriously. We have no doubt that it is appropriate that we impose a custodial sentence for this contempt.[13]We have been asked to consider suspending that sentence. We acknowledge that the respondent has lost a considerable amount as a consequence of the false aspect of this claim. He has lost the opportunity to pursue a genuine claim for damages, or at least possibly a genuine claim for damages. He has landed himself with a very large bill of costs which he will either have to pay or risk bankruptcy. These proceedings impact very adversely on his young family. He lives with his partner and a young child. He has brought great distress no doubt on all his family.[14]We take a full account of the fact that there are mitigating circumstances, as described by Mr Goodman, and we give substantial credit for the fact that Mr Wells, the respondent, was prepared to admit his contempt before Burton J.[15]Having reflected long and hard, however, we cannot find any basis upon which it would be proper to suspend the sentence. In cases of this kind almost invariably immediate custodial sentences follow. We fear that there is no basis upon which we can depart from that usual course. Had this been a trial, we would have determined that the appropriate custodial term was 6 weeks' imprisonment, to reflect the mitigation and the credit for accepting the contempt, we impose a sentence of 4 weeks' imprisonment. In the normal course of events that means that half will be served. Would you now please surrender yourself to the appropriate person.