Airbus Operations Ltd v QBE Insurance Company (UK) Ltd & Anor [2012] EWHC 3631 (Admin)

Neutral Citation Number: [2012]EWHC 3631 (Admin)Case No C0/2770/2012
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14 December 2012
Before
LORD JUSTICE MOORE-BICKMR. JUSTICE CRANSTON
Between
AIRBUS OPERATIONS LIMITEDClaimantsQBE INSURANCE COMPANY (UK) LIMITEDDefendantsADAM LEE ROBERTSDefendant
(Transcript of the Handed Down Judgment of WordWave International LimitedA Merrill Communications Company 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr. William Featherby Q.C. (instructed by Berrymans Lace Mawer LLP) for applicantsMr. Craig Sephton Q.C. and Mr. Brett Williamson (instructed by Gray & Co.) for defendantsHearing Hearing date: 28 th November 2012
JudgmentLord Justice Moore-Bick :Introduction
[1]This is the judgment of the court on an application by the claimants, Airbus Operations Ltd (“Airbus”) and its employer’s liability insurer, QBE Insurance (Europe) Ltd (“QBE”), to commit the defendant, Adam Roberts, to prison for contempt of court. It arises out of a claim the defendant made for damages for personal injury said to have been suffered in the course of his employment by Airbus. That claim was later comprised in circumstances to which we shall refer in due course. Airbus, with the consent of QBE, admitted liability but disputed the amount of damages. The claimants say that the defendant set out to manipulate the proceedings by exaggerating his symptoms to such an extent that his claim was fraudulent. His conduct therefore amounted to contempt of court and ought to be punished.

Background

[2]In October 2007 the defendant was employed by Airbus as an apprentice aircraft electrician. On 15th October, while he was applying cable to the wing of an Airbus A380, he fell and twisted his back. He says that he immediately felt some pain but that it was not severe and he was able to finish his shift. The next day he found that the pain had increased noticeably. He went to work as usual, but left after about an hour in order to see his GP. The doctor advised him to take proprietary painkillers and go to the accident and emergency department of his local hospital if the pain did not subside. The defendant found that ordinary painkillers were not effective and, since the pain was becoming worse, he did so. The hospital carried out an MRI scan which revealed small tears in his lumbar discs, but it was not thought that relatively minor degeneration of that kind could have produced the symptoms of which he eventually complained, namely, lower back pain radiating down his right leg.[3]The defendant approached his trade union for help and was referred to a firm of solicitors who agreed to act for him. In April 2008 they sent a letter to Airbus on his behalf claiming damages for personal injury and consequential loss. Just under two months later, in mid June 2008, the claimants indicated in response that liability would not be in dispute.[4]The defendant was off work from October 2007 until the beginning of January 2008. Between late November 2007 and early April 2008 he underwent a course of physiotherapy which he found beneficial. When he returned to work in January 2008 he was able to resume his former job as an apprentice, but he stopped work again in June 2008 and in about August 2008 he started using a crutch. In November 2008 he was seen by a spinal surgeon, Mr. Braithwaite, but decided not to undergo surgical treatment because he considered that the risks outweighed the likely benefits.[5]In April 2009 the defendant was examined by a consultant orthopaedic surgeon, Mr. Wootton, with a view to producing a report for the purposes of legal proceedings. In a report dated 21st April 2009 Mr. Wootton described the defendant as suffering from low back pain radiating to his right leg which disturbed his sleep and prevented him carrying out various activities that he had previously liked. He recorded the defendant as having told him that he could walk only short distances and normally had to use two crutches. Mr Wootton diagnosed soft tissue injury to the spine. There was clinical and radiographic evidence of a torn disc or annular tear of the disc with degeneration of the disc. One of Mr Wootton’s recommendations was enrolment in a functional restoration programme at an orthopaedic hospital. The defendant did attend such a programme but said he had not obtained any benefit from it. Mr. Wootton examined the defendant again on 23 August 2010. He reported that the defendant was no better and that his symptoms remained as before.[6]The defendant’s solicitors issued a claim form in the Wrexham County Court on 30th September 2010 claiming damages for personal injury. Particulars of claim were served on 17th January 2011 verified by a statement of truth made by the defendant’s solicitors with his authority. In the particulars of claim the defendant relied on the admission of liability made in June 2008 and said very little about the circumstances in which he had sustained the injury. It was alleged that the defendant suffered from persistent and chronic pain and the preliminary schedule of loss included claims for future loss of earnings, care and support, equipment, adaptations to property, and medication and treatment costs. The following month Airbus served a defence to the claim.[7]On 11th January 2011 the defendant was examined by Professor Main, a clinical and health psychologist, in connection with his claim. In a report dated 1st June 2011 Prof. Main recorded that the defendant had told him that his symptoms had worsened around October 2010, that he stayed in his room most of the day and that he had pain all across his lower back and buttocks, with radiation down the right side of his right leg to his ankle. Prof. Main concluded that the persistence of pain and the impact of pain on his sleep, well-being and function had led to the development of a severe psychologically mediated chronic pain syndrome, which had adversely affected his capability for work and which in turn had further demoralised him. Prof. Main said that he could detect no evidence that the defendant was other than genuine in the presentation of his symptoms.[8]On 24th July 2011 the defendant signed a witness statement produced for the purposes of the proceedings. It was verified by a statement of truth. After outlining the accident and his symptoms, the defendant described his current state of health. He said he could walk only short distances; he had to use two crutches, although at times he managed with one, particularly when carrying something; he was in constant pain. He said he was unable to carry out any domestic activities apart from some light cleaning work; he needed the assistance of others for anything more strenuous. He relied on his neighbours for help with the garden and would have to pay others to do the painting and decorating when that became necessary.[9]In September 2011 the defendant was examined by two doctors on behalf of the claimants. Mr. Marks, a consultant orthopaedic spinal surgeon, saw the defendant on 9th September. He recorded the defendant as saying that his wife had to get him in and out of bed, dress his lower half and put on his trousers, socks and shoes, and help him to shower. He was unable to undertake any household activities and had given up decorating and gardening. Mr. Marks noted that the defendant moved with discomfort and used a walking stick to get from the consultation area to the examination couch, a distance of several feet. He concluded that the defendant appeared to have developed a symptomatic lumbar degenerative complaint as a result of the accident, but that the disability described by the defendant was much greater than he would have expected.[10]Dr. Tim Johnson, a consultant in pain management and anaesthesia, examined the defendant on 26th September 2011. The defendant’s description of his symptoms on that occasion was similar to that which he had given to Mr. Marks. Dr. Johnson concluded that the defendant’s accident had played an insignificant role in the development of his problems. There were complex explanations for his failure to rehabilitate, including his seeking compensation, unresolved medical issues, the possibility of surgery, and an overwhelming psychological reaction. We shall return to the reports of Mr. Marks and Dr. Johnson later.[11]On 3rd October 2011 the defendant’s solicitors served a revised schedule of special damages. The claim for past loss of earnings was put at £28,018 and the claim for past care and assistance at £19,958. The claim for future losses remained unquantified.

The surveillance

[12]In the meantime, events had occurred that were to have a profound effect on the progress of the defendant’s claim. Over a period of three days in June 2011 the defendant was kept under observation by investigators engaged by QBE. On 17th June 2011, he was seen leaving his house on foot. Although he had a crutch on his right arm, he appeared to be walking without apparent difficulty and with no sign of a limp. He appeared to be putting very little, if any, weight on the crutch. Some time later he was observed at a house in Ellesmere Port with a lady we now know to have been his mother. A video recording of his activities was made over a period of about an hour and three quarters. The recording shows the defendant carrying building materials from a house and putting them into a skip. He can be seen moving without any apparent difficulty, despite the absence of a crutch or any other walking aid, and carrying heavy objects, including a wash basin, a lavatory, a cabinet containing an electric bar heater, a bathroom wall cabinet, and several bags full of some kind of rubbish. Although his mother can be seen helping him to carry a bath to the skip, he can be seen upending it in the skip on his own and then manhandling it into another position. He hammers on objects in the skip and can be seen bending and twisting as he repacks its contents. On another occasion he can be seen smashing a board by raising it above his head and bringing it down repeatedly and forcefully on the edge of the skip. At one point he bends down to pick a cabinet up from the ground and then rams this repeatedly and forcefully into the skip. At another he uses a hammer on the cabinet, then stamps on it on the ground. Later he comes out of the front door carrying a roll of carpet and throws it over his shoulder onto the skip. He also aims and throws items from arm’s length from an upstairs window into the skip.[13]On 26th October 2011 the insurers’ solicitors disclosed the existence of the video evidence and in mid-February 2012 the claim was compromised. There was no order except that the defendant should be entitled to retain the interim payments of some £8,000.

The committal application

[14]An application for permission to bring proceedings against the defendant for contempt of court was made by the claimants a few weeks later on 6th March 2012 and on 20th April 2012 the court gave the claimants permission to take proceedings against the defendant. Attached to the particulars of contempt is a schedule containing 13 counts of contempt. They are based on what the defendant said to Mr. Wootton on 23rd August 2010 and Prof. Main on 11th January 2011, on the particulars of claim and preliminary schedule of loss, on the defendant’s witness statement and on what he said to Mr. Marks and Dr. Johnson in September 2011. Counts 1-10 allege specific acts which are said to constitute contempts of court because they involve a deliberate attempt to interfere with the proper administration of justice. Counts 11-13 are of a more general nature and depend on the court’s findings of fact in respect of the specific allegations. Mr. Featherby Q.C. very properly accepted that they cannot by themselves support a finding of contempt.[15]When giving permission for this application to be made the court also gave directions for the conduct of the proceedings. They included a direction that the defendant should be deemed to have admitted that he uttered the words attributed to him in the reports of, among others, Mr. Wootton, and Mr. Marks, and to have presented himself in the manner they describe unless he stated to the contrary by 15t June 2012. The defendant was also ordered to serve a defence by 15th June.[16]The defendant did not give notice challenging what was said in the reports of Mr. Marks or Mr. Wootton by 15th June or at all. On 22nd October 2012 he served a defence verified by a statement of truth in which he denied the allegations of contempt. Except for the relatively minor clarifications he offered, he said that the statements he made in his claim were true and were made with an honest and reasonable belief in their truth.

The law

[17]There was no dispute about the principles of law that apply in this case. It was accepted in the light of the observations made by Lord Clarke in Fairclough Homes Ltd v Summers [2012] UKSC 26, [2012] 1 W.L.R. 2004 that applications for committal for contempt are an appropriate means of controlling, punishing and as far as possible eliminating, dishonesty in the conduct of civil proceedings. Contempt of court is a criminal offence. Accordingly, the burden of proving that the defendant is in contempt rests on the claimant and the facts constituting any contempt must be proved to the criminal standard: see Re Bramblevale Limited [1970] 1 Ch 128. The claimant must also prove, again to the criminal standard, that the defendant acted with the intention of interfering with the due administration of justice, but, as Mr. Sephton Q.C. accepted, if the court finds that the defendant in this case knowingly made false and dishonest statements of the kind alleged, that is likely to be an irresistible inference. Finally, the claimant must show that, if the false statement had been persisted in, it is likely that it would have interfered with the course of justice.

The allegations of contempt

[18]We therefore turn to consider the individual allegations of contempt in detail, beginning with count 6, which concerns the witness statement made by the defendant on 24th July 2011, some five weeks after the video recording was made of him loading rubbish into the skip at his mother’s house. The stark contrast between the defendant’s description of his condition in that statement and the activities shown on the video makes this the central and most important allegation against him. In his statement the defendant said: (i). that he had persistent pain in his lower back radiating down his leg; (ii). that he had quite significant problems with his mobility; (iii). that his symptoms had remained static for about two years; (iv). that they disturbed his sleep; (v). that he could only walk short distances and used two crutches, but that at times he managed with one crutch, particularly if he had to carry something; (vi). that he was in constant pain; (vii). that although he could just about manage some light cleaning, he could not carry out a lot of domestic activities and could not look after his garden or do any painting or decorating; (viii). that he was experiencing increasing psychological problems and was becoming increasingly depressed. All those statements are said to have been false to the defendant’s knowledge and made for the purpose of supporting his claim to recover substantial damages.[19]On the face of it, with the possible exception of (viii), the evidence of the video recording is wholly inconsistent with the defendant’s description of his condition, as he himself acknowledged, but he explained from the witness box how that had come about. He said that his mother had recently moved into a new house and needed help in putting a substantial amount of rubbish in a skip she had hired for 24 hours for the purpose. Judging by what one can see in the video, the rubbish arose from the refurbishment of parts of the house, including a bathroom. It included several bags of what appear to be rubble, plaster or other heavy debris. The defendant said that his sister’s partner had agreed to help, but was unable to be there that day, so his mother had rung him at work and asked him to come along. He told us that at no time had he asked the partner why he had been unable to help, but, in the light of what he told us about the effect the work had had on him, we find that difficult to accept.[20]The defendant said that he had finished his shift at lunch time and had then gone to his mother’s house taking with him several morphine tablets and other medication. He said in cross-examination that after he reached his mother’s house he had taken six 10mg morphine tablets and three 400µg tablets of buprenorphine. In his defence he had said that he had no recollection of that day because of the drugs he had taken, but in evidence he said that he could recall various things that had happened, although he did not have a continuous recollection. He said that after he had finished loading the skip he slept at his mother’s house for a couple of hours before going home. When he got home he went to bed and stayed there for a day and a half because the pain was so intense. However, he was able to go back to work on the Monday.[21]There are several aspects of the defendant’s account that we find difficult to accept. In his defence to this application, which was verified by a statement of truth, he said that he had no recollection of that day. His explanation for being able now to remember certain aspects of what had happened was that frequent viewing of the video had jogged his memory, but the DVD had been disclosed a year earlier and by the time the defence was drafted he must have viewed it on several occasions. It was not clear why his memory had improved significantly over the last five weeks since the defence was served.[22]We also approach with considerable caution the defendant’s evidence about the amount of painkillers that he had taken immediately before starting the work. He told us that his normal dose of morphine was one tablet, three times a day. To take six at one time in combination with other painkillers might be regarded as extremely foolhardy. He did not say how he came to have such a large number of tablets with him when he went to his mother’s house. There was no medical evidence about the likely effect of taking such a large dose of morphine and buprenorphine at one time, but we think it would be surprising if there were no adverse effects, if only for example, in the form of drowsiness. However, no adverse effects of any kind can be seen on the video. Notwithstanding the painkillers, the defendant also said in his defence that he was still in pain when moving the rubbish, but that is difficult to reconcile with his evidence that he had no recollection of the afternoon’s events. It is even more difficult to reconcile with what one can see of his movements and facial expressions at the time. The defendant insisted that the bags that he can be seen carrying to the skip and emptying were light and did not contain heavy materials of any kind. He suggested that they appeared to be heavy only because of the pain he was experiencing while he carried them. We are unable to accept that explanation. The defendant was able to carry other objects, in particular a heavy porcelain lavatory bowl, without difficulty and with no indication of pain. The only reasonable explanation for the way in which he can be seen carrying the bags is that they were indeed heavy. Nonetheless, he was able to lift them onto the skip and in some cases empty the contents without undue difficulty. He was also able to smash pieces of plasterboard against the skip and to climb onto the skip to tread down the contents before jumping off. None of that would have been possible if he had been in any real pain.[23]In the absence of any other evidence supporting the defendant’s explanation we turn to consider the other allegations of contempt and the defendant’s evidence in relation to them in order to see what light they throw on his general credibility.[24]Counts 7 and 8 relate to the defendant’s examination by Mr. Marks on 9th September 2011. In count 7 it is alleged that he told Mr. Marks that he could not care for himself, that his wife had to get him into and out of bed, dress his lower half and help him shower and that he could not do any housework, painting and decorating or gardening. In count 8 it is alleged that the defendant told Mr. Marks that he used a walking stick and moved with discomfort. All that is said to have been untrue to his knowledge.[25]Mr. Marks made contemporaneous notes of his examination followed by a lengthy written report. In that report Mr. Marks records that the defendant told him that he always used a walking stick when out of the house, that he could not care properly for himself, and that his wife had to get him into and out of bed and help him dress. He also records the defendant telling him that he undertook no domestic activities, nor any gardening or DIY. That part of his report is consistent with the notes. The defendant took issue with much of that description of his condition. He denied having used a walking stick at any time or having said that he needed help from his wife to get into (as opposed to out of) bed. He denied having told Mr. Marks that he did no household chores or any gardening. He told us that he was able to do some light work in the house and a certain amount of work in the garden, but that his neighbour looked after the front garden for him. He said that he had told Mr. Marks all that, but that he had failed to record the position correctly.[26]Mr. Marks’s manuscript notes are not entirely easy to read, but as one would expect they support his written report. We have seen no other evidence to suggest that the defendant has ever used a walking stick as opposed to a crutch and are satisfied that on that point his report is wrong. In addition the notes do not record the defendant as having said that he needed help from his wife to get into bed. However, we can see no reason to doubt the accuracy of his notes or his report when recording what the defendant said about other matters. In our view the documents are more reliable than the defendant’s unaided recollection about what he told Mr. Marks in the course of the examination. We reach that conclusion without having to rely on the order of 20th April 2012.[27]In those circumstances we are satisfied to the necessary high standard that, although the defendant did not say he used a walking stick or that he needed the help of his wife to get into bed, he did deliberately give Mr. Marks a false description of his condition in the other respects alleged. We therefore find count 7 proved in part, but not count 8.[28]Counts 9 and 10 concern statements made by the defendant to Dr. Johnson. Count 9 alleges, in particular, that he said he needed help with his personal care most of the time and was unable to perform any routine domestic chores (such as cleaning or washing dishes), gardening or decorating. Count 10 alleges that the defendant represented to Dr. Johnson by his behaviour that he walked with a pronounced limp. All those representations are said to have been false to the defendant’s knowledge.[29]Dr. Johnson examined the defendant on 26th September 2011. We also have copies of his contemporaneous notes and copies of the responses to various questionnaires provided by the defendant himself in preparation for the examination. Dr. Johnson’s practice is to use the pain report completed by the patient to make his own notes of the patient’s response to questions prompted by the report. In response to a question about his home life the defendant wrote:
“It’s painful so I can no longer really do any of the household chores I used to do like gardening, decorating, dishes and hoovering.”
In the margin Dr. Johnson wrote:
“No domestic activity, not even helping wash dishes.”
On physical examination Dr. Johnson noted that the defendant had been limping around the clinic on his right leg. Later in relation to the limp he noted that the defendant said that his right leg would give way from time to time.[30]In the section of his report dealing with home life and domestic activity Dr. Johnson referred to what the defendant had said in his pain report. He recorded that as follows:
“It’s painful so I can no longer really do any of the household chores. I used to like gardening, decorating, dishes and hoovering.”
We accept that that was a misquotation of what the defendant had written. However, Dr. Johnson’s notes reflect a question of some kind about the defendant’s ability to do household chores which prompted the response to which we have referred. In our view the doctor’s note made in the course of his examination is to be preferred to the defendant’s recollection over a year later and we are therefore satisfied that the defendant did tell him that he was unable to any household chores, even the washing up. It is also consistent with what Mr. Wootton had recorded in his report of April 2009 and with what Mr. Marks recorded in September 2011.[31]Another passage in Dr. Johnson’s report, written within a day or so of the examination, is also illuminating. In the section dealing with his physical examination of the defendant he wrote:
“He demonstrated reduced motor power of right knee extension but the amount of force that he generated was much less than would have been used in order to support his walking and standing from sitting so I think this was artefactual and feigned. . . . I examined his footwear. He was wearing a pair of worn trainers. I noted that there was only very slightly less wear on the lateral aspect of the left heel. The wear pattern on the soles was otherwise symmetrical. This suggests that he probably does have a slight limp on the right-hand side but that he gait is fairly normal. I watched him leave the clinic with a pronounced limp that settled as he walked further away from the clinic and his use of the crutch was very minimal. ” (Emphasis added.)
[32]The defendant insisted that Dr. Johnson was wrong about the limp and, more importantly, that he had not seen him walking away from the clinic. He said that after the examination he had sat in the corridor outside the consulting room for 20 to 30 minutes while other patients were seen. Dr. Johnson did not recall that. Dr. Johnson dictated his report within a day of the examination at a time when he might reasonably be expected to be able to remember its more salient features. We can well understand that, having observed the defendant limping (whatever exactly that entailed) in the consulting room, he would have been interested to see how he walked under more normal conditions. We can see no reason why Dr. Johnson should have included that passage in his report unless it represented an honest account of what he saw and we reject the defendant’s evidence to the contrary.[33]In those circumstances we are satisfied to the necessary high standard that the defendant did deliberately give Dr. Johnson a false description of his condition and as part of that did deliberately lead him to understand that he walked with a severe limp. Accordingly we find counts 9 and 10 proved.[34]However, the doctors’ evidence is also important because of what it tells us about the defendant’s credibility. Although there are minor blemishes in each of the reports, the overall picture is clear. In each case the defendant set out to give the impression that he was seriously disabled to the point at which he could not walk properly and could do virtually nothing in the house or garden, not even help with the washing up. Dr. Johnson formed the view in the course of his examination that he was fabricating some symptoms and his account of watching the defendant leaving the clinic reinforces the impression that he was in fact considerably less disabled than he had suggested. The fact that he was prepared to accuse Dr. Johnson of making up that part of his report provides further evidence of his willingness to go to considerable lengths in his own defence.[35]At this point we can return to count 6. What light does the evidence to which we have referred shed on the defendant’s explanation for what one can see in the video of 17th June 2011? Apart from anything else, it suggests that he was quite prepared to exaggerate his symptoms and was not as disabled as he had suggested in his particulars of claim. That in turn suggests that he is a person who is prepared, if necessary, to lie when he thinks it is in his interests to do so. The surveillance evidence obtained on 17th June 2011 shows him walking, albeit with a crutch, with scarcely any sign of a limp and placing very little weight on the crutch. That is very similar to what Dr. Johnson observed on 26th September 2011. In the light of all the evidence what was already a doubtful explanation of the events of 17th June 2012 becomes utterly implausible. We do not accept that the activity shown on the video was an isolated event made possible only by a huge dose of morphine and other pain- killing drugs. It may be that the defendant does suffer some pain in his back; he has a long history of medical problems, including depression and back pain. It may also be the case that he needs to take some medication to control it. Nonetheless, in our view what the video evidence discloses is that in June 2011 the defendant was able to undertake reasonably strenuous activity over quite a long period of time without any real difficulty.[36]It follows that the statement he made on 27th July 2011 was to the defendant’s knowledge false in a number of important respects. In particular, by that time he did not have significant problems with his mobility; he was not restricted to walking short distances; he did not use two crutches, generally or at all; he was not in constant pain, or at any rate not to an extent that significantly interfered with ordinary life; he was not incapable of carrying out ordinary domestic activities; he was not incapable of looking after his garden or of doing painting or decorating. He may or may not have been suffering from depression, but if he was, it was not caused by constant severe pain in his lower back. We are therefore satisfied to the required high standard that count 6 is proved.[37]The position in relation to the way in which the defendant described his symptoms to Mr. Wootton in August 2010 and Prof. Main in January 2011 is more difficult. The only evidence available to contradict any of the accounts he gave to the doctors on those occasions is that contained in the video recording and what the defendant himself said when he gave evidence. The examinations took place some ten and five months respectively before the recording was made and it is therefore more difficult to be sure that he was exaggerating his symptoms to a significant degree. As far as the examination by Mr. Wootton is concerned, however, there is one matter on which we entertain no doubt. According to Mr. Wootton’s report, the defendant told him that he used two crutches most of the time, repeating what he had said when previously examined in April 2009. That was consistent with his telling Mr. Wootton that his symptoms had not improved. The defendant’s evidence on this point was rather muddled. In response to Mr. Wootton’s first report he said that he had generally been using two crutches at that time and that what he is recorded as having said was true. However, in response to Mr. Wootton’s second report he said that it was true that his symptoms had remained static but it was not true that he used two crutches and that Mr. Wootton had made a mistake about that. Again, we prefer Mr. Wootton’s contemporaneous record to the defendant’s account four years later and are satisfied that he seriously exaggerated the severity of his symptoms in that respect. We therefore find count 1 proved to that extent.[38]In January 2011 the defendant told Prof. Main that his symptoms had worsened in about October 2010. He maintained in cross-examination that what he had said was true, but since he did not refer to any subsequent improvement in his condition between January and June 2011, one would be entitled to compare the account he gave on that occasion with the evidence of the video recording. In fact, however, there must have been some improvement because the defendant was off work when he saw Prof. Main, but was back at work in June 2011. In those circumstances we cannot be sure that the account he gave to Prof. Main was not a reasonable description of his symptoms at the time. It follows that we do not find count 2 proved.[39]Counts 3 and 4 deserve to be considered together because they both relate to the allegations made in the particulars of claim. Count 3 concerns the allegation that the defendant had developed persistent and chronic pain and count 4 to his reliance on the report made by Mr. Wootton in April 2009 as supporting that assertion. In substance those two assertions, which are intended to be read together, contain an allegation that the defendant’s condition in January 2011 was the same as it had been in April 2009. For the reasons we have given we are satisfied that that was not the case and that in at least one important respect Mr. Wootton’s first report did not contain a fair description of the defendant’s symptoms either at the time or in January 2011. We are therefore satisfied that to that extent count 3 is proved.[40]Count 5 relates to the heads of loss set out in the particulars of claim. In our view the terms in which this is framed are too broad to support a finding of contempt of court.

Conclusion

[41]The defendant has a long and varied history of illness, including persistent problems with depression. It is interesting to note, however, that in April 2008, after the defendant had completed a course of physiotherapy, his GP noted that the painful symptoms of which he had earlier complained had steadily improved and were 75% resolved. He did not consult his GP about depression until October 2008, but did so frequently thereafter. The extent to which his psychological problems may have affected his symptoms is a matter for conjecture. On the evidence of the video recording, however, it is clear to us that in July 2011 the defendant was not significantly disabled and his condition was not as he described it in his witness statement. Since that statement was produced specifically for the purposes of supporting his claim, there can be no doubt that it was intended to persuade the court to find that he was seriously and permanently disabled and to award him damages to which he was not properly entitled. Had it not been for the surveillance evidence, it is very likely that that statement, supported by what he had told the doctors, would have led to his being awarded a substantial sum in damages to which he was not entitled. We therefore find that the defendant was in contempt of court in making a statement which he knew to be false with a view to influencing the outcome of the proceedings. In addition we are satisfied, as previously indicated, that he made a number of other statements by words or conduct that were intended to mislead the doctors and others into thinking that his symptoms were far more severe than was really the case, all with a view to bolstering his claim for substantial damages. We therefore find that the defendant is in contempt of court in the respects indicated. Beyond that we do not think it necessary to deal with counts 11-13.[42]We shall invite submissions from counsel before deciding what order to make in the light of our findings.

Cited in 3 later judgments