London Borough of Havering v Bowyer & Ors [2012] EWHC 2798 (Admin)

Case No CO/11522/2011

[2012] EWHC 2798 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 26 July 2012

Strand

London WC2A 2LL

B e f o r e:

LADY JUSTICE RAFFERTY

MR JUSTICE SINGH

Between

LONDON BOROUGH OF HAVERINGClaimant

Between

MARK BOWYERDefendant

JAMES JONESDefendant

RICHARD BOWYERDefendant

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Mr W Featherby QC appeared for Claimant

Mr A Clemens appeared for Defendant, Mark Bowyer

Mr R Harland appeared for Defendant, James Jones

Mr F Saifee appeared for Defendant, Richard Bowyer

J U D G M E N T

[1]This is an application to commit the defendants for contempt of court brought with the permission of the Divisional Court granted on 3 February 2012.

[2]The first defendant has in large part admitted his contempt. The second defendant played no active part in these proceedings until recently, but through counsel at the hearing, also in large part admitted his contempt. The third defendant, who is the first defendant's father, has opposed the application in respect of him. Accordingly, the hearing before us to date has concerned the question whether the third defendant is guilty as alleged. The factual background

[3]There is no real dispute about the background facts, which are evidenced in the witness statements and documents before the court, most of which have been taken as read. The application arises out of an action for damages which was brought by the first defendant against the present applicant by a claim form which was issued on 2 June 2009 in the Central London County Court. That claim related to personal injuries said to have been caused by the negligence and/or breach of statutory duty of the applicant. The present applicant is a local Council, which was the defendant to the personal injury action.

[4]On 11 June 2006 the first defendant and the second defendant were together in Harrow Lodge Park, Hornchurch, Essex. They were on their way home from a party and had consumed some alcohol. At about 3am the first defendant sustained an injury near the boating lake in the park. The injury was a double fracture of the right medial malleolus (ankle joint), with lateral displacement of the malleolus and tibia, and a fracture of the fibula.

[5]At about 3.12am the second defendant telephoned the London Ambulance Service to summon help. He told the operator that the accident had happened in the park by the lake, and the first defendant had fallen off a wall and broken his leg.

[6]At about 6am members of an ambulance crew reached the first defendant. The second defendant was still with him. They were near the lake. The first defendant told the ambulance crew that he had injured himself when he had fallen off a wall. The ambulance took the first and second defendants to Oldchurch Hospital.

[7]The first defendant gave a similar account to the Accident and Emergency Department at the hospital. In or about June or July 2006 the first defendant intimated that he would bring a claim for damages for personal injury. He alleged that had he sustained his injury when he fell at a pothole in or near a leisure centre in the park. At or about the same time he disclosed a photograph of a pothole which he alleged had caused his accident. The leisure centre is about half a mile or more from the lake. It takes about 15 minutes to walk from there.

[8]On 8 February 2007 the present applicant admitted liability in the first defendant's action against it. On 3 July 2007 the first defendant attended a medico-legal examination by Mr Jonathan Beacon, a consultant orthopaedic surgeon. The third defendant was present throughout. The first defendant told the consultant that he had sustained his injury stepping into a pothole, which had caused him to stumble. On 5 July 2007 Mr Beacon produced a report in which he summarised the medical reports made by staff at the A&E Department at the hospital, which indicated that the first defendant had sustained his accident when he had fallen 3 feet from a wall.

[9]On 18 April 2008, having been alerted to the discrepancy between the first defendant's account and the contents of his medical reports, and after undertaking further enquiries, the applicant withdrew its admission of liability.

[10]On 2 June 2009 the first defendant issued his claim for personal injuries.

[11]On 16 September 2009 the first defendant purported to verify the particulars of claim with a statement of truth. At the same time the first defendant served a provisional schedule of special damage. In it he claimed £24,929.10 in damages for past pecuniary loss, and intimated a claim in respect of future loss of earnings. This also was accompanied by a statement of truth.

[12]On 8 July 2010 the first defendant attended an examination by Ian McDermott, a consultant orthopaedic surgeon. The first defendant told Mr McDermott that the accident had happened when he had been walking along a pavement behind a sports centre, that there had been a pothole in the ground and that he had twisted his right ankle in this and had fallen.

[13]During the course of the claim the first defendant made a witness statement on 31 May 2010; the second defendant made a witness statement on 22 July 2010; and the third defendant made a witness statement on 28 May 2010. Each carried a statement of truth. On 15 October 2010 the first defendant abandoned his claim for negligence by serving a notice of discontinuance on the applicant. Relevant legal principles

[14]The applicant submits that, for the purpose of these proceedings, a person is guilty of contempt of court if, in legal proceedings, he interferes or attempts or conspires to interfere with the administration of justice. The applicant submits that relevant illustrations of such interference are:(a) knowingly making a fraudulent claim;

(b) making or causing to be made a false statement without an honest belief in its truth; and

(c) failing with dishonest intent to disclose a fact which if disclosed would materially reduce the value to such person of the remedy sought (in particular the quantum of damages), knowing or intending the same, if persisted with, would interfere with the administration of justice.

[15]Further, the applicant submits, by virtue of rule 32.14 of the Civil Procedure Rules, proceedings for contempt 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.

[16]At the hearing before us, no issue was taken as to the relevant legal principles. The essential issue was one of fact: whether the third defendant did any of the things that are alleged by the applicant. Specific allegations of contempt

[17]In a schedule attached to the applicant's particulars there are set out specific counts, numbered 1 to 7 relating to the first defendant, 10 to 13 relating to the second defendant, and 15 to 19 relating to the third defendant. There are also some general counts numbered 20 to 23 which apply to all three defendants, and in particular count 21 alleges a conspiracy between them. The position of the first defendant

[18]The first defendant has served a brief defence in which he largely admits the contempt allegations against him: see paragraph 4 of his defence, but we note the slight qualifications expressed there in respect of counts 5 and 8. A qualification was also expressed at the hearing before us by counsel on behalf of the first defendant in respect of count 21 insofar as it is alleged there was a conspiracy involving the third defendant. The position of the second defendant

[19]The second defendant has until recently played no active part in these proceedings. At the hearing the court was informed that he e-mailed the applicant's solicitors a few weeks ago to admit liability too. Certain qualifications were expressed by his counsel at the hearing before us. He made a similar qualification in respect of count 21 in relation to the allegation of a conspiracy involving the third defendant. He also denied paragraph 19(h) and (n) of the applicant's particulars so far as they concern him.

(h) states:

"The first defendant and/or the second defendant told the third defendant on the morning of the accident that the accident had happened near the lake and/or had involved ... his stepping, jumping or falling from a wall."

[20]Paragraph 19(n) states:

"The first defendant's, the second defendant's and the third defendant's motive was dishonest financial gain."

The position of the third defendant

[21]The third defendant has filed a detailed defence in which he denies the allegations of contempt made against him. In essence, his position is that he was not present on the night of the accident in question and had no direct knowledge of where or how it took place. His defence is, in essence, that he was reliant on his son, the first defendant, and did not make any statements knowing them to be untrue and dishonest. Evidence

[22]In support of the application there has been filed an affidavit by Mr Palmer of the applicant's solicitors. As we have already noted, a number of witness statements from the personal injury action and documents were placed before us and taken as read.

[23]The only live evidence we heard was from Mr Stuart Potter, the manager of the sports centre in the park, and from the third defendant. Findings in relation to the third defendant

[24]We bear in mind that this defendant is a man of good character. This is not only in the sense that he has no previous convictions, but there are before the court positive references as to his character from several people who know him. His good character is relevant in two ways.

[25]First, we give it weight in assessing the credibility of his evidence, and we bear mind in particular that he is now aged 59. Secondly, this makes it more likely that he did not commit the contempt of court of which he is now accused. However, we did not find the third defendant to be an impressive or credible witness for the following reasons. First, he said in his evidence that right up to the time when he swore his affidavit in these proceedings on 4 April 2012, and indeed for some time after that, he still believed that the first defendant's claim had been a genuine one. He told the court that his son had in fact been lying to him throughout that period of six years since the accident, and that this had come as a shock to him since he swore his affidavit earlier this year.

[26]We do not find that account credible. Even on his own account, the third defendant had played an important role in supporting his son's claim. He had taken an active part in that claim, for example by making a witness statement. The first defendant knew that the claim had been discontinued in October 2010. We do not find it credible that he would not have been curious as to why his son had done that if the claim had a genuine basis. This is not only because of the natural concern a father would have for his son, but also because there is some evidence before the court that the first defendant has some learning disability. In addition, the third defendant is a man who had some familiarity with legal procedures, as he had himself settled a personal injury claim for a large amount in the past, and he retained contact with his trade union, and through the union was able to access legal advice from solicitors for his son.

[27]If his evidence is to be believed, not only did the third defendant not discover the truth around the time that his son's action was discontinued in October 2010, but he did not do so even after these proceedings had been commenced. Mr Palmer's affidavit in support of it is dated 25 November 2011. The third defendant attended the permission hearing on 3 February 2012. It would have been clear to him on reading the papers and by attending the hearing what the basic allegation being made by the applicant is and has been for some time. Yet he was prepared to swear an affidavit in response to that allegation in April this year that he still believed that his son's claim had been a genuine one: see paragraph 36.

[28]The third defendant said that he had not heard what was said at the hearing on 3 February. He struck us as an intelligent man. Even if it is true that he did not hear what was being said at the hearing, we do not believe that he would not have asked outside court and been given a sufficient explanation as to the essence of the Council's allegations.

[29]Secondly, the third defendant was cross-examined about a letter dated 18 April 2008 from Zurich Insurance. That letter clearly raised the suggestion that the first defendant had fallen off a wall. The third defendant told the court that he did not see that letter at the time and that he did not ask to see it because he did not think that was necessary. However, that evidence was inconsistent with what the third defendant said in his affidavit at paragraph 27 where he mentioned the letter, and in particular at paragraph 28 where he said:

"Both I and my son were very surprised to see that letter since we were not expecting to see a letter of that kind. We were so upset by that letter that my son and I decided to get my union involved. Had I known the claim to be false I certainly would not have escalated it in this way, particularly through my union."

[30]Thirdly, the third defendant said in cross-examination that the first time he had knowledge of the nature of the applicant's defence that the first defendant had fallen from a wall was after his son had returned from receiving legal advice from a pro bono centre earlier this year at a time after the third defendant's affidavit was sworn on 4 April.

[31]We do not find it credible that the third defendant did not see, for example, the Council's defence in the County Court action, which was dated 22 October 2009. That made it clear that the Council's defence was that the first defendant had fallen from a wall: see paragraph 1(a). Furthermore, the affidavit sworn by Mr Palmer in the present proceedings was filed in November 2011: see paragraphs 9-13, which made clear the basis on which the Council was contending that the personal injury claim had been fabricated.

[32]Also, the third defendant was present when his son was examined by Mr Beacon on 3 July 2007. During that examination Mr Beacon, who had seen the contemporaneous medical records, asked if the first defendant had fallen over a wall. The third defendant himself mentions this at paragraph 26 of his affidavit. Yet, according to his evidence, he did not even have his curiosity aroused by such a question being raised, even afterwards when he would have been alone with his son and could have asked him about it.

[33]Fourthly, the third defendant's evidence requires the court to accept that, shortly after the first and second defendants arrived at hospital on 11 June 2006, they had already concocted a false story about the pothole. This is because, in his statement in the personal injury action, the third defendant said: "The first I heard of Mark's accident was when his friend James Jones, who had been with him at the time, phoned me up later that morning some time between 8 and 9. He told me that Mark had had an accident when he had tripped in a pothole as they had been walking through Harrow Wood Park ..." (see paragraph 3)

[34]In a similar vein, at paragraph 5 of his witness statement the third defendant said:

"I remember speaking to Mark that morning and asking him what had happened. He confirmed what James had initially said to us in his phone call, in that he had tripped because of a pothole."

[35]In his witness statement at paragraph 4, the third defendant said:

"James did mention at the hospital that morning that he might have said when calling the ambulance that Mark had fallen from a wall because he was trying to make sure they took the accident seriously."

[36]The third defendant said something similar in his sworn affidavit in the present proceedings at paragraph 15:

"James was in a real state ... He told me ... that he even told the ambulance service that Mark fell from a wall to get them to take the matter seriously. He said that he made several earlier phone calls to the ambulance service, but those were not taken seriously ..."

[37]The second defendant has not given evidence to confirm that. To the contrary, through his counsel at the hearing before us he has denied that any such conversation took place. We bear mind that that was not said in sworn testimony.

[38]In any event, we do not find it credible that the wall would have been used as a device to induce the ambulance crew to attend at the park quicker than if they thought there had been an injury caused by a pothole. It is not immediately obvious why it should have made a difference. The third defendant suggested that this was because the second defendant had made several calls and mentioned the wall because there was such a large number of emergency calls that night, over 7000, that he thought that would get them to come more quickly. However, it is clear from the transcript of the first telephone call made at 3.12am that the second defendant mentioned the wall straight away. He did not mention a pothole. Moreover, he did not learn of the 7000 other calls that night until towards the end of that telephone conversation. By that time he had already mentioned the wall more than once to the operator who answered his call.

[39]Fifthly, we were particularly concerned as we heard the third defendant giving evidence that he mentioned for the first time that there had been two episodes of relevance. He claimed that his son told him that en route to the party he had tripped on a pothole and en route back had fallen from a wall. Yet this was mentioned for the first time in cross-examination. He had never mentioned it either in his witness statement in the County Court action or in his affidavit in these proceedings. We do not find that account credible.

[40]We are disturbed that it indicates a willingness on the part of the third defendant to make up things during the course of his sworn evidence in order to bolster his account when he saw difficulties in it exposed through cross-examination. Submissions on behalf of the third defendant

[41]Mr Saifee, who appeared on behalf of the third defendant, submitted that we should not find the allegations against his client proved to the criminal standard. In particular, he submitted that there was nothing inherently implausible in the account of the accident being caused by a pothole. He reminded us that the third defendant had not been present at the meeting with the first defendant's solicitors, when it had been decided to discontinue the personal injury claim in the autumn of 2010. Mr Saifee submitted that it was not clear when various accounts of the accident (which mentioned a wall) had been given to staff at the hospital. He submitted that we could not, therefore, be sure that the pothole story had been concocted before those accounts were given, as the applicant alleged, against the third defendant. He submitted that his client had not been the instigator of the fraudulent claim and that he had not helped to maintain it. He submitted that it was not plausible that his client had any financial motive for lying to support his son's claim. He submitted that the third defendant had been duped by his son as others had been.

[42]Eloquent though Mr Saifee's submissions were, we do not feel able to accept them. We find that the third defendant did know that the personal injury action by his son was a fraudulent one, and that he took active steps to support that claim dishonestly, for example by making his witness statement dated 28 May 2010. Although his motive may not have been one of direct financial gain for himself, we have no doubt that he wished to support his son's claim. Conclusion

[43]We remind ourselves that the burden of proof rests on the applicant, and that the standard of proof is the criminal one: we must be satisfied so that we are sure that the third defendant committed the wrongs alleged against him. We are sure that the third defendant is guilty as alleged. We have not found him to be a credible witness, rather we have found him to be willing to lie, even in his sworn affidavit and in oral evidence to this court. We find him guilty of contempt of court as alleged in the particulars against him.

LADY JUSTICE RAFFERTY: So, Mr Featherby, tomorrow three individuals fall to be sentenced.

[45]MR FEATHERBY: Yes. May I mention four things, very briefly? Firstly, as I understand it, a transcript will kindly be circulated.

LADY JUSTICE RAFFERTY: It is here.

[47]MR FEATHERBY: Thank you. Secondly, there will be an application for costs tomorrow. My instructing solicitor will endeavour to have an estimate, but they will have to be assessed. Thirdly, I will, with the court's permission, make a brief further statement about the facts, but nothing that will take you by surprise, just one or two points ought to be mentioned in open court. Fourthly, of course, we leave it to the court to arrange the appropriate attendance of staff tomorrow.

LADY JUSTICE RAFFERTY: Yes, that has been put in hand. Mr Harland is here, so he can make quite sure that his lay client attends tomorrow -- I am so sorry, Mr Saifee is here; forgive me, Mr Saifee. I will make it quite clear to Mr Clemens and Mr Harland that their lay clients must be here.

[49]MR FEATHERBY: I think they are present in court, in any event.

LADY JUSTICE RAFFERTY: I am sure they are, and the tip staff will be alerted.

[51]There are some practical matters that arise from our need to sit at 9 tomorrow morning to accommodate Mr Harland, so if counsel would be kind enough to make sure they liaise with my clerk before the day is out, we can make sure that all flows smoothly.

[52]MR FEATHERBY: I think we all know that.

LADY JUSTICE RAFFERTY: What do you know?

[54]MR FEATHERBY: That you want to sit at 9 o'clock.

LADY JUSTICE RAFFERTY: Yes, but you do not know that you will not get in until 9 o'clock. So to be here at 9, you need to be at a nominated entrance before 9 so he can get you in.

[56]MR FEATHERBY: I would have forgotten that. Thank you very much.

LADY JUSTICE RAFFERTY: Just forgive me a moment, Mr Featherby. (Pause)

[58]Mr Featherby, just with our eye on the practicalities, really for Mr Harland, who we have to remember is keeping a video appointment at Westminster in an extradition case and cannot lose his slot, would it be convenient for you to reduce to writing the extra comments that you want to make?

[59]MR FEATHERBY: It certainly would.

LADY JUSTICE RAFFERTY: You will of course want to make them orally, but it would help Mr Harland if he can read them in advance and it would help the court. Could you do that?

[61]MR FEATHERBY: Yes, of course. They will be very brief. Would it be possible to circulate this electronically as well?