Royal & Sun Alliance Insurance Plc v Kosky [2013] EWHC 835 (QB)

Case No ATC/13/0014[2013] EWHC 835 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue Royal Courts of JusticeDate Thursday, 7 March 2013
Strand,
London WC2A 2LL
Before
SIR RAYMOND JACK(Sitting as a Judge of the High Court)
Between
ROYAL & SUN ALLIANCE INSURANCE plcClaimantSHIRLEY KOSKYDefendant
Digital Transcript of Wordwave International, a Merrill Corporation Company165 Fleet Street, 8th Floor, London, EC4A 2DYTel No: 020 7421 4046  Fax No: 020 7422 6134Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com(Official Shorthand Writers to the Court)
MR M CRANT (instructed by DWF) appeared for Claimant.MR H COHEN (instructed by Carlsons) appeared for Defendant.
Judgment

SIR RAYMOND JACK:

[1]This is an application for permission to commence proceedings for contempt of court brought pursuant to the new CPR 81. The applicant is Royal & Sun Alliance Insurance plc, who were the insurers of a Mrs Zackaryan. On 25 October 2009 Mrs Zackaryan drove into the rear of a car containing Mr and Mrs Kosky. On 12 September 2012 Mrs Kosky commenced proceedings against Mrs Zackaryan, which were later settled. The insurers’ case against Mrs Kosky is that she caused her solicitors to sign the statement of truth on the particulars of claim in that action, knowing that the particulars of claim contained false statements.[2]Although this may be the first application to be made under CPR 81.17, the proper approach to such applications has been considered under the previous procedural regime in a number of cases. It is well established that the applicant for permission must show both a strong prima facie case that the contempt occurred, and that in all the circumstances it would be in the public interest for the committal application to proceed. This application for permission has concentrated on the first, because it is accepted that the bringing of bogus or inflated claims against insured persons is something that requires a strong response from the courts. But in connection with public interest some reliance was placed on the individual circumstances of Mrs Kosky, and I think that the public interest aspect may also be relevant to the surveillance evidence - to which I will come.[3]In accordance with the new rule, Mrs Kosky filed evidence opposing the application for permission and was represented before me.[4]There were three aspects to the insurers’ case, which I will take in turn.[5]The first related to what Mrs Kosky had told the medical experts as to her previous history. Although the action had only been commenced on 12 September 2012, medical experts had been involved well before that. The first report of Professor Bentley instructed on behalf of Mrs Kosky is dated 18 November 2010. That of Mr O’Dowd, instructed on behalf of the insurers, is dated 7 December 2011. Their joint statement is dated 14 October 2012.[6]Paragraph 5 of the particulars of claim reads:
“As a result of the defendant’s negligence the claimant was injured. The claimant’s date of birth is 22 June 1943. Full details of these injuries are set out in the medical reports of Professor Bentley dated 18 November 2010, 17 August 2011, his letters of 15 December 2010 and 11 January 2011, and his joint statement with the defendant’s expert Mr O’Dowd of 14 August 2012, the report of Mr Hollingdale dated 16 February 2012, and the report of Mr Heckster dated 20 February 2012.”
[7]The insurers’ case is that Mrs Kosky gave a false medical history which was reflected in Professor Bentley’s report. It is said that she failed to inform him of the lower back problems which she had had in late 2008 and early 2009. Mr Bentley’s first report dated 18 November 2011 is silent as to Mrs Kosky’s history. That may suggest that there was nothing of relevance. That would be incorrect. Mrs Kosky’s evidence is that, as her lower back had not given her trouble for some six months before the accident in 2009, she did not think it necessary to mention the earlier trouble. Professor Bentley’s report of 17 August 2011 refers to the GP notes. They mentioned a scan performed on 12 January 2009 which showed some osteoporosis. The report also refers to lower back problems mentioned in a letter from Mr Leehovsky to Mr Nashemi Nejad. Page 6 of the report refers to the accident on 25 October 2009 as having aggravated the posterior joint osteoarthritis.[8]Professor Bentley’s letter of 11 January 2012 quotes from a report of Mr O’Dowd. Mr O’Dowd had said:
“Therefore I believe that all of the degenerative pathology antedated the index accident.”
Professor Bentley’s response to that was:
“I consider that there was certainly degenerative change in the spine prior to the accident, and I agree it was moderately severe. In this context it is important to remember that many patients of Mrs Kosky’s age have degenerative changes in the back, but do not necessarily have symptoms. It is very difficult to correlate radiographic or MRI findings with clinical symptoms which produce no back pain. It is therefore possible that Mrs Kosky could have remained asymptomatic had she not had the accident on 25 October 2009, or that her symptoms would have been much less than they presently are.”
[9]The joint statement of 14 August 2012 proceeded on the basis of a case based on the acceleration of previous degenerative changes.[10]The case that the documents referred to in the particulars of claim did not reveal that Mrs Kosky had suffered relevant prior degenerative changes to her lower back does not begin. It may be that Mrs Kosky was backward in giving Mr O’Dowd and Professor Bentley her full history, but the records revealed what it was, and it appeared in the reports referred to in the particulars of claim.[11]I will take next that aspect of the case which was based on the schedule of damage attached to the particulars of claim. This was not signed with a statement of truth. It should have been – see the practice direction to CPR 22 at paragraph 1.43. If a schedule of loss attached to particulars of claim is treated as separate to the particulars of claim for the purpose of requiring a separate signature of truth, then my preliminary view is that it should be so treated for the purpose of CPR 81.17(1). That is an answer to this aspect of the insurers’ case. The insurers’ case was to be that Mrs Kosky had recovered damages following an earlier similar road accident in 2006, which damages overlapped with those claimed in the schedule of loss in the action following the 2009 accident, and that she failed to give any credit for that or to mention it. The insurers would have had to have shown that this was dishonest – something strongly denied by Mrs Kosky. Her case was that the problems which had been caused by the 2006 accident, which limited her ability to do various things in respect of which she had claimed compensation, had resolved themselves by 2009.[12]The last aspect of the insurers’ case relates to what Mrs Kosky told Professor Bentley about her mobility, namely walking very slowly, having to use a stick, with a maximum distance of about 100 yards. This was recorded by Professor Bentley in his report. The insurers relied upon video surveillance evidence. This shows her walking with a stick on the arm of her husband, with some difficulty, on the day of her visit to Mr O’Dowd, and on other days walking slowly, but with no stick and unaccompanied. I note that it would seem that she had no reason to think that she was observed once she was out of sight of Mr O’Dowd’s consulting room.[13]I have considered whether I should watch this evidence (some four hours in all) and I decided against that. I have read a description of what it shows, with timings, and I have read Mrs Kosky’s explanation. This is not a clear-cut case where it shows her, for example, going on long walks, taking other exercise, or doing physical work. I do not think that on an application for permission to commit the court should be involved in a detailed examination and assessment of surveillance evidence in a situation such as exists here. That is not what the public interest requires.[14]I therefore refuse the insurers’ permission to bring proceedings for contempt of court against Mrs Kosky. The application was concerned with a statement of truth, namely that the signatory believed that the facts stated in the particulars of claim were true. This application shows the need to identify precisely what is asserted to be untrue, and the way in which it is said not to be true. __________

Cited in 1 later judgment