London Borough of Havering, R (on the application of) v Bowyer & Ors [2012] EWHC 2237 (Admin)

Case No CO/11522/2011[2012] EWHC 2237 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 27 July 2012
Strand
London WC2A 2LL
B e f o r e:
LADY JUSTICE RAFFERTY
MR JUSTICE SINGH
Between
THE QUEEN ON THE APPLICATION OFClaimantLONDON BOROUGH OF HAVERINGClaimantv
Between
MARK BOWYERDefendantJAMES JONESDefendantRICHARD BOWYERDefendant
Computer-Aided Transcript of the Stenograph Notes of WordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr W Featherby, QC appeared for ClaimantMr A Clemens appeared for Defendant, Mark BowyerMr R Harland appeared for Defendant, James JonesMr F Saitee appeared for Defendant, Richard Bowyer
Judgment

LADY JUSTICE RAFFERTY:

In

[1]sentencing these three contemnors, we have derived assistance from South Wales Fire and Rescue Service v Smith[2011] EWHC 1749 (Admin), cited with approval in Fairclough Homes v Summers[2012] UKSC 26. In South Wales Fire and Rescue, Moses LJ said:
"For many years, the court sought to underline how serious false and lying claims are to the administration of justice. False claims undermine a system whereby those who are injured as a result of the fault of their employer or a defendant can receive just compensation. They undermine that system in a number of serious ways. They impose upon those liable for such claims the burden of analysis, the burden of searching out those claims which are justified and those claims which are unjustified. They impose a burden upon honest claimants and honest claims when this response to those claims, understandably those who are liable are required to discern those which are deserving and those which are not. Quite apart from that effect on those involved in such litigation is the effect upon the court. Our system of adversarial justice depends upon openness, transparency and above all honesty. The system is seriously damaged by lying claims. It is in those circumstances that the courts have on numerous occasions sought to emphasise how serious it is for someone to make a false claim either in relation to liability or in relation to claims for compensation as a result of liability. Those who make such false claims in court should expect to go to prison. There is no other way to underline the gravity of the conduct. There is no other way to deter those who may be tempted to make such claims and there is no other way to improve the administration of justice."
[2]For the first defendant, Mark Bowyer, Mr Clemens seeks substantial credit for his comprehensive admissions. He invites us to treat them as having been made as soon as possible since public funding was not available for advice and the Bar Pro Bono unit afforded cogent advice only after the usual lengthy screening was done. Once advice was given, Mark Bowyer's concession was immediate. Loyal to his father he has from the moment of admission and until now insisted that he, Mark, was prime mover and ringleader. To that we shall in due course return.[3]Finally, Mr Clemens makes two points, that his lay client did not brazen this out to a trial and that founding these lies was a genuine injury.[4]As to the London Borough of Havering's complaints as to loss, he reminds us that the schedule thereof was limited in scope, but he accepts that there would inevitably be a process of accretion, no matter the drafting of any schedule. That said, the first defendant had in July 2008 already returned to work. The submission of Mr Clemens therefore is that the claim is self-limiting and lacks the gloss of invention of, for example, the case of Loveday to which we shall come. Mark Bowyer is far from idle or workshy and has won a good reputation as a practical man, making the most of what abilities he has.[5]For James Jones, Mr Harland has taken us to Liverpool Victoria Insurance v Samina Bashir and others [2012] EWHC 895 (Admin). That was a wholly fabricated claim for personal injury after a traffic accident. Frauds of that type were identified by the court as notoriously difficult to detect. The defendants were "footsoldiers in... fraud by others on a considerable scale". 6 weeks immediate custody and suspended terms of imprisonment were imposed to recognise admissions, information of assistance to the insurers and difficult personal circumstances.[6]Mr Harland relies also on Nield and Acromas Insurance v Loveday [2011] EWHC 2324 (Admin), the claim inflated by grossly exaggerated injuries. Loveday's wife admitted her contempt. Loveday contested the contempt and was sentence to 9 months' imprisonment, Mrs Loveday to 6 months' imprisonment, the term suspended for 18 months.[7]Mr Harland argues that the fraud in Liverpool Victoria was sophisticated, large scale and difficult to detect. This contempt by contrast was unsophisticated. There was no attempt to conceal the true story from the ambulance crew and the truth was bound to emerge when medical evidence was obtained. There must be, he urges, a distinction between prime movers and those whose role is to corroborate.[8]The second defendant's contempt arose, it is said, 13 months post-issue. Even without it, the claim would have continued. Significant credit is claimed for those who admit their contempt because of the courage and remorse such admissions implied: Loveday. Finally, 2 years have elapsed since he committed his contempt.[9]Mr Saifee for Richard Bowyer necessarily had fewer submissions to make, his lay client having contested the contempt. He simply reminds us that loss of liberty will inevitably mean that the family home is lost and that Richard Bowyer enjoys, as he has for many years, poor health.[10]It would not have been surprising had these three contemnors appeared not in this jurisdiction, but in the Crown Court. Each of them is either of good character or we treat as of good character - Mark Bowyer has a conviction for driving whilst in drink 9 years ago. We remind ourselves that as a consequence, we should pay particular attention to the account, post-concession of contempt, of the first of the defendants.[11]Mark Bowyer may rely in mitigation upon the following points: He suffered a genuine injury. He waited almost certainly in pain some hours for the arrival of the London ambulance service. He accepted his contempt, albeit late in the day in October 2010. His deceit wasamateurish as evident from his account to the consultant surgeon Mr Beacon which was at odd with his previous and truthful accounts. We note that he describes himself as the prime mover and ringleader. We are prepared to accept that the initial decision to lie may have been his and to the extent therefore that “prime mover” implies temporality, we accept what he says.[12]However, we are confident that as time went by, Mark relied upon the counsel of his father Richard, older, more experienced and a strong personality. There is in our judgment an element of nobility in Mark Bowyer's stance.[13]James Jones may rely on the following: He accepted his contempt, albeit only after advice and only communicated in the last few weeks. He is very keen to express to the court his remorse which is unreserved. He accepts wholeheartedly that his behaviour was foolish and stupid. It is unlikely any financial advantage would have accrued to him had the deceit been successful. His behaviour was likely to have been prompted by a foolhardy desire to help Mark Bowyer. The scheme was amateurish. His role was supportive rather than principal.[14]Richard Bowyer lacks the mitigation of a plea. His attempt to exculpate himself before us was itselfamateurish. We find that he was the driving force behind the continued attempt to deceive and that his son would not have been likely to pursue the deceit as energetically as he did without the shoring up at its lowest and positive urgings at its highest which his father provided.[15]As to the conspiracy counts, the first and second defendants admit conspiring with each other. Neither admits conspiring with the third defendant, who makes no admission at all. Justice can be done without our reaching a conclusion on what remains in issue. In a criminal context, the pleas to or convictions on the substantive counts would be considered adequate for sentencing purposes and we adopt the same approach. These contempts obliged the London Borough of Havering to expend considerable energy and funds in hunting down the truth. Some at least of the consequent financial burden will fall on the public or at least sections of it.[16]The administration of justice requires parties and potential parties to understand that truthfulness lies at the centre of litigation. Those who mock that concept by their arrogance and avarice do not simply tilt at the scales of justice in their own cause, but compromise the reputation or probity of these courts when they reach a decision and make an award. There were ample staging posts along the way to litigation which allowed any or all of these defendants to step back from their lies.[17]We think it likely James Jones was carried along on a tide and may quickly have been out of his depth. Mark Bowyer bears measurably more responsibility. Richard Bowyer bears the most.[18]That said, we have put in the scales in Richard's favour that he is 59 and of good character. Mark and James Jones are 27. The admissions of contempt from Mark Bowyer and James Jones attract some discount, more for the former than the latter. We have taken account of those authorities to which we have been referred and of character references where appropriate.[19]For the reasons so cogently set out in South Wales Fire a prison sentence is inevitable in each case. We regard the loss of good character as a punishment in itself, on the one hand for a man of mature years who can no longer hold up his head in the community, and on the other for each of two young men whose future is by his own greed and/or stupidity blighted. Each of the first and second defendants will lose his job.[20]In each case, as a consequence of the sentence we shall now impose, the effect of statute is that half the nominated term will be served. In respect of each defendant, the sentence we impose is concurrent as to every count to which admission has been made or upon which conviction has flowed. Mark Bowyer will go to prison for 2 months. James Jones will go to prison for 1 month. Richard Bowyer will go to prison for 4 months.[21]Costs will be assessed on an indemnity basis. We will rise and as we do so, each defendant will be required to surrender to the Tipstaff whom we see is in court.

Cited in 1 later judgment