Liverpool Victoria Insurance Company Ltd v Khan & Ors [2016] EWHC 2590 (QB)

Case No HQ16X00032/Case No HQ15P05372[2016] EWHC 2590 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 14 th October 2016
Before
HER HONOUR JUDGE WALDEN-SMITH(sitting as a Judge of the High Court)
Between
LIVERPOOL VICTORIA INSURANCE COMPANY LIMITEDClaimantKAMAR ABBAS KHAN (1)DefendantsSHAFIQ SULTAN (2)DefendantDR ASEF ZAFAR (3)DefendantMOHAMMED SHAZAD AHMED (4)Defendant
Paul Higgins (instructed by Horwich Farrelly) for ClaimantLouis Browne (instructed by Haider Solicitors) for First DefendantConor Quinn (instructed by Haider Solicitors) for Fourth DefendantHearing Hearing dates: 27 th July 2016
JudgmentHER HONOUR JUDGE WALDEN-SMITH:
[1]This is the application brought by Liverpool Victoria Insurance Company Limited (“Liverpool Victoria”) for permission to commence committal proceedings against Mr Kamar Abbas Khan, the First Defendant, and Mr Mohammed Shazad Ahmed, the Fourth Defendant.[2]I have already dealt with the applications for permission to commence committal proceedings against Mr Shafiq Sultan, the Second Defendant, and Dr Asef Kafar, the Third Defendant. I gave permission by way of a reserved oral judgment.[3]I had adjourned the applications for permission to bring committal proceedings against Mr Khan and Mr Ahmed as neither had been prepared for the hearing and required legal representation. Given the seriousness of the allegations raised against the Defendants and the potential consequences of any committal proceedings I readily agreed to the adjournment sought in order that legal representation could be obtained and in order for the Second and Third Defendants to give full instructions. I was satisfied, after hearing submissions, that it was in the interests of justice and in furtherance of the overriding objective that the application be dealt with over two hearings. As the judge hearing both applications for permission against each of the four defendants, I am able to ensure that there is consistency in factual findings and approach.

The Background

[4]The application for permission to bring committal proceedings arises from the collapse of road traffic accident proceedings (RTA proceedings) which had been listed for trial on 14 August 2013.[5]The Claimant in those proceedings, Mr Mudassar Iqbal, alleged that he had been involved in a road traffic accident (RTA) whereby he had been in his stationary Vauxhall Sephira awaiting traffic ahead to move, when Nicky Versloot, the driver of a Toyota Rav, drove her vehicle into the side of his vehicle. Liverpool Victoria were the insurers of Ms Versloot.[6]In the Particulars of Claim Mr Mudassar Iqbal alleged that he had sustained a personal injury. The personal injury part of the claim was supported with medical evidence in the form of a report dated 17 February 2012 from the Third Defendant, Dr Asef Zafar.[7]The medical report disclosed in support of the personal injury claim provided the following. First, with respect to treatment, it was said that:
‘Mr Iqbal did not receive any treatment at the scene of the accident. After the accident, he drove to work. He took analgesia four hours after the accident. The treatment is still continuing’
. Under the heading ‘Musculoskeletal examination’, ‘Neck. There was paraspinal muscle tenderness on both sides and muscle spasm. Rest of the neck examination was normal. There is no clinical evidence of any neurovascular deficit’. Under the heading ‘Present symptoms reported by Claimant’, it says ‘As described to me at the time of examination, he developed moderate pain and stiffness in the neck and shoulder on the day of the accident. These have not improved yet. He developed mild pain in the right wrist on the day of the accident. This has not improved yet.’ Under the heading “Prognosis” it was said “Pain to the right wrist: For the right wrist pain no additional treatment is required. In my opinion this symptom is due to a whiplash injury. On the balance of probabilities, I anticipate this symptom will fully resolve between 6-8 months from the date of the accident. Pain and stiffness to the neck and shoulder: For the neck and shoulder pain and stiffness no additional treatment is required. In my opinion these symptoms are due to a whiplash injury. On the balance of probabilities, I anticipate these symptoms will fully resolve between 6-8 months from the date of the accident.”[8]The claim was listed for trial and, in accordance with what were quite unremarkable directions, `the Claimant’s solicitors were directed to prepare the trial bundle. In the bundle prepared by the Claimant’s solicitors for the purpose of the trial, a medical report dated 17 February 2012 from Dr Zafar was included. It was only when the parties attended at trial that it became apparent that the report in the bundle (authored by Dr Zafar and dated 17 February 2012) was not the same as the report originally disclosed to Liverpool Victoria. It differed in these crucial respects. With respect to the issue of treatment, it said as follows:
‘Mr Iqbal did not receive any treatment at the scene of the accident. After the accident, he drove to work. He took analgesia four hours after the accident. The treatment finished one week later’
. With respect to the musculoskeletal examination under the heading ‘Neck’, it said:
‘Examination of the neck was normal. There is no clinical evidence of any neurovascular deficit’ and under the heading ‘Symptoms as described to me at the time of the examination. Mr Iqbal developed mild pain and stiffness in the neck on the day of the accident. These resolved one week from the date of the accident. These symptoms were due to a whiplash injury.’
Under the heading “Present symptoms reported by the Claimant” it said “Claimant has fully recovered from the injuries sustained in the accident.”‘[9]The contrast between the two reports is stark. In the report disclosed with the claim, Mr Iqbal had suffered whiplash injuries to the neck and to the wrist, with a 6-8 month recovery period; whereas the report included in the bundle sets out that Mr Iqbal had mild pain and stiffness on the day of the accident but the symptoms, due to a whiplash injury, resolved 1 week from the date of the accident. The diagnosis of a whiplash injury to the wrist does not even make sense.[10]When the claim could not progress by reason of it coming to light that there were two medical reports dated 17 February 2012, both written by Dr Zafar but providing a different analysis of Mr Iqbal’s injuries and prognosis, the trial judge gave directions for the purpose of investigations being undertaken to ascertain how those two reports had come into existence.[11]The grounds upon which Liverpool Victoria seek permission to make an application to commit Mr Khan and Mr Ahmed relate to both the creation of the two medical reports in the RTA proceedings and also with respect to what happened after directions were given to ascertain why there were two reports providing different results of a medical examination and why symptoms and treatment were both differently described in the two reports.[12]I will deal with the different grounds raised in due course.

The Legal Framework

[13]Applications and proceedings in relation to contempt proceedings and the penal, contempt and disciplinary provisions of the County Court Act 1984 are regulated by CPR Part 81.[14]CPR Part 32.14 provides: ‘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’.[15]The court is obliged to exercise great caution before giving permission for a party to bring committal proceedings. In KJM Superbikes Ltd. v Hinton [2009] 1 WLR 2406, Moore-Bick LJ, sitting with Mummery LJ and Arden LJ, said that among the foremost factors which the court will need to consider are the strength of the evidence tending to show not only that the statement was false but that it was known at the time to be false, the circumstances in which it was made, such evidence of the maker’s state of mind including his understanding of the likely effect of the statement and the use to which it was to be put in the proceedings. In addition, regard will be had to whether the proceedings would be likely to justify the resources devoted to them. The court should not give permission to bring contempt proceedings unless there is a strong case.[16]Moore-Bick LJ in KJM Superbikes said:
“Whenever the court is asked by a private litigant for permission to bring proceedings for contempt based on false statements allegedly made in a witness statement it should remind itself that the proceedings are public in nature and that ultimately the only question is whether it is in the public interest for such proceedings to be brought. However, when answering that question there are many factors that the court will need to consider. Among the foremost are the strength of the evidence tending to show not only that the statement in question was false but that it was known at the time to be false, the circumstances in which it was made, it significance having regard to the nature of the proceedings in which it was made, such evidence as there may be of the maker’s state of mind, including his understanding of the likely effect of the statement and the use to which it was actually put in the proceedings. Factors such as these are likely to indicate whether the alleged contempt, if proved, is of sufficient gravity for there to be a public interest in taking proceedings in relation to it. In addition, the court will also wish to have regard to whether the proceedings would be likely to justify the resources that would have to be devoted to them.”[para. 16] “In my view the wider public interest would not be served if courts were to exercise the discretion too freely in favour of allowing proceedings of this kind to be pursued by private persons. There is an obvious need to guard carefully against the risk of allowing vindictive litigants to use such proceedings to harass persons against whom they have a grievance, whether justified or not, and although the rules do not prescribe the class of persons who may bring proceedings of this kind, the court will normally wish to be satisfied that the applicant was liable to be directly affected by the making of the statement in question before granting permission bring proceedings in respect of it. Usually the applicant will be a party to the proceedings in which the statement was made ….In my view there is also a danger of reducing the usefulness of proceedings for contempt if they are pursued where the case is weak or the contempt, if proved, trivial. I would therefore echo the observation of Pumfrey J in the Kabushiki Kaisha Sony Computer case [2004] EWHC 1192 (Ch) at [16] that the court should exercise great caution before giving permission to bring proceedings. In my view it should not do so unless there is a strong case both that the statement in question was untrue and that the maker knew that it was untrue at the time he made it. All other relevant factors, including those to which I have referred will then have to be taken into account in making the final decision.” [17] “Paragraph 28.3 of the Practice Direction supplementing Part 32 directs the applicant to consider whether proceedings for contempt would further the overriding objective and that is a matter which the court itself should plainly have in mind. It is important not to allow satellite litigation of this kind to disrupt the progress of substantive proceedings and it may not be possible to assess the strength of the complaint until those proceedings have concluded. This danger was well described by David Richards J. in Daltel Europe Ltd v Makki as follows: “Allegations that statements of case and witness statements contain deliberately false statements are by no means uncommon and, in a fair number of cases, the allegations are well-founded. If parties thought that they could gain an advantage by singling out these statements and making them the subject of a committal application, the usual process of litigation would be seriously disrupted. In general the proper time for determining the truth or falsity of these statements is at trial, when all relevant issues are before the court and the statements can be considered against the totality of the evidence. Further, the court will then decide all the issues according to the civil standard of proof and will not be applying the criminal standard to isolated issues, as must happen on an application under CPR Part 32.14”
[17]In the case of William Andrew Tinkler v Trevor Howarth and Peter Elliott [2014] EWCA Civ 564, the Court of Appeal referred to the judgment of HHJudge Pelling, sitting as a Judge of the High Court, where he set out the approach to be taken on applications for permission. I will recite the principles that he sets out therein. ‘i) In order for an allegation of contempt to succeed it must be shown that “… in addition to knowing that what you are saying is false, you had to have known that what you are saying was likely to interfere with the course of justice …” – see Edward Nield v Loveday [2011] EWHC 2324 (Admin); ‘ii) The burden of proof is on the party alleging the contempt who must prove each element identified above beyond reasonable doubt - see Edward Nield v Loveday (ante); ‘iii) A statement made by someone who effectively does not care whether it is true or false is liable as if that person knew what was being said was false – see Berry Piling Systems Limited v Sheer Projects Limited [2013] EWHC 347 (TCC), paragraph 28 – but carelessness will not be sufficient – see Berry Piling Systems Limited v Sheer Projects Limited (ante), paragraph 30(c); ‘iv) Permission should not be granted unless a strong prima facie case has been shown against the alleged contemnor – see Malgar Limited v RE Leach (Engineering) Limited [1999] EWHC 843 (Ch), Kirk v Walton [2008] EWHC 1780 (QB), Cox J at paragraph 29 and Berry Piling Systems Limited v Sheer Projects Limited (ante) at paragraph 30(a); ‘v) Before permission is given the court should be satisfied that a) The public interest requires the committal proceedings to be brought; b) The proposed committal proceedings are proportionate; and c) The proposed committal proceedings are in accordance with the overriding objective – see Kirk v Walton (ante) at paragraph 29; ‘vi) In assessing proportionality, regard is to be had to the strength of the case against the respondents, the value of the claim in respect of which the allegedly false statement was made, the likely costs that will be incurred by each side in pursuing the contempt proceedings and the amount of court time likely to be involved in case managing and then hearing the application but bearing in mind the overriding objective – see Berry Piling Systems Limited v Sheer Projects Limited (ante) at paragraph 30(d); ‘vii) In assessing whether the public interest requires that permission be granted, regard should be had to the strength of the evidence tending to show that the statement was false and known at the time to be false, the circumstances in which it came to be made, its significance, the use to which it was actually put and the maker’s understanding of the likely effect of the statement bearing in mind that the public interest lies in bringing home to the profession and through the profession to witnesses the dangers of knowingly making false statements – see KJM Superbikes Limited v Hinton [2008] EWCA Civ 1280, Moore-Bick LJ at paragraphs 16 and 23; and ‘viii) In determining a permission application, care should be taken to avoid prejudicing the outcome of the application if permission is to be given by avoiding saying more about the merits of the complaint than is necessary to resolve the permission application – see KJM Superbikes Limited v Hinton (ante) at paragraph 20’. Consequently, the court at the permission stage, is obliged to scrutinise with great care the evidence that is provided in order to determine whether there is a strong prima facie case that the defendant either knew the information was false or did not care whether it was false or not. Without that strong prima facie case, the claimant does not get over the threshold of this permission stage. At the same time, it is important that anything that I say within this judgment is said in the context of a permission application, and that does not in any way determine any final outcome. That is a matter for determination in due course. a) The public interest requires the committal proceedings to be brought; b) The proposed committal proceedings are proportionate; and c) The proposed committal proceedings are in accordance with the overriding objective – see Kirk v Walton (ante) at paragraph 29;[18]In Malgar v Leach (2000) FSR 393, Sir Richard Scott (VC) made it clear that in order for there to be a contempt “…it must in every case be shown that the individual knew that what he was saying was false and his false statement was likely to interfere with the course of justice.” In order for Liverpool Victoria to succeed in any application to commit, it needs to establish that at least part of the statement verified with the statement of truth was false; that the maker of the statement knew that it was false or was reckless as to whether it was true or false at the time he verified it; and the false statement must have been likely to have interfered with the course of justice. The standard of proof with respect to each element is the criminal standard, namely beyond reasonable doubt.

The Grounds setting out allegations against Kamar Abbas Khan

[19]Liverpool Victoria make the following allegations against Mr Khan: i) That he asserted in his statement dated 28 August 2013 that there had been an amendment request by the Claimant (Mr Iqbal) on 22 February 2012, which Liverpool Victoria contend is false and he knew (or was reckless) it to be false (B1); ii) That he asserted in his statement dated 28 August 2013 that the Claimant’s primary concern was that his neck symptoms were ongoing, which Liverpool Victoria contend is false and he knew it to be false (or was reckless) (B2); iii) That he asserted in his statement dated 28 August 2013 that the Claimant had been sent a copy of the Report 2 (the medical report referring to a 6-8 month recovery period) and authority to disclose was received on or before 24 February 2012, which Liverpool Victoria contend is false and he knew (or was reckless) it to be false (B3); iv) That he asserted in his statement dated 4 April March 2014 that typed instructions were provided to Dr Zafar which were the same as the hard copy on file, which Liverpool Victoria contend is false and he knew (or was reckless) it to be false (B4); v) That he asserted in his statement dated 21 January 2015 that the Claimant would invariably visit the offices of On Time Claims, which Liverpool Victoria contend is false and he knew (or was reckless) it to be false (B5); vi) That he asserted in his statement dated 21 January 2015 that he received a telephone call from the Claimant advising that he was not happy with the content of the medical report as the injuries recorded therein did not reflect the injuries he sustained, which Liverpool Victoria contend is false and he knew (or was reckless) it to be false (B6); vii) That he asserted in his statement dated 21 January 2015 that he had specific instructions not to disclose the medical report of Dr Zafar, which Liverpool Victoria contend is false and he knew (or was reckless) it to be false (B7); viii) That he attached to his statement dated 21 January 2015 a file note dated 22 February 2012 relating to an alleged telephone conversation between him and the Claimant, which Liverpool Victoria contend was false and he which knew (or was reckless) it to be false (B8); ix) That he asserted in his statement dated 21 January 2015 that he read the second report to the Claimant and obtained his authorisation for disclosure, which statement Liverpool Victoria contend is false and he knew (or was reckless) it to be false (B9); x) That he attached to his statement dated 21 January 2015 a file note of a telephone conversation that took place between him and the Claimant on 24 February 2012, which note Liverpool Victoria contend is false and he knew (or was reckless) it to be false (B10); xi) That he asserted in his statement dated 21 January 2015 that the Claimant had agreed the second report, which assertion Liverpool Victoria contend is false and he knew (or was reckless) it to be false (B11); xii) That he asserted in his statement dated 21 January 2015 that when a copy of the amended report request was required it had to be re-typed as there was only a file copy and the original had not been saved, which assertion Liverpool Victoria contend is false and he knew it to be false (B12).[20]Mr Khan denies that he was engaged in any of the conduct alleged by Liverpool Victoria. The underlying contention made on behalf of Mr Khan is that, as a qualified solicitor, he would not take the risk of exposing himself to the risk of imprisonment and professional sanctions by acting as he did simply to secure fast track trial costs. The response of Liverpool Victoria to that contention is that while, if established, behaving in a manner which is to deliberately mislead the court, is liable to the strongest of sanctions (including loss of job and professional status) there was a real benefit in costs to the solicitor in having the changes to the medical reports and they can point to changes to the explanations given by Mr Khan which supports a prima facie case of Mr Khan misleading the court.[21]Counsel for Mr Khan made a forceful attack upon Mr Iqbal’s credibility, stating that he had proceeded to continue to lie to the solicitors with respect to his RTA claim and that any ground which relies upon Mr Iqbal’s evidence must fail as he is a proven and habitual liar, including that he told Mr Spiegalman (a later instructed medic) that his wife had been ironing his shirts for a month as he could not do it. It is said that Mr Khan is quite the opposite. An officer of the court who knows his duties to the court. In my judgment it is not as simple as pitching Mr Khan against Mr Iqbal and saying that on the one hand there is an officer of the court and on the other there is someone who can be proved to be a liar. Clearly it is an important and relevant factor to be taken into account but it does not give a full answer to the allegations being made.[22]The second major area of contention is the letter dated 22 February 2012. Mr Khan contends that a genuine letter was sent to Dr Zafar on 22 Februrary 2012. Liverpool Victoria contend that the letter was written much later and that the letter has been deliberately constructed in a way to show Mr Khan giving perfectly straightforward instructions to the medic to reconsider his report in light of the matters that the lay client has complained about and which are contained in the first report.[23]It was at the heart of the submissions before me whether the letter purportedly written on 22 February 2012 was genuine or not. Counsel for Mr Khan contended that it was not a false letter.[24]After the existence of the two medical reports came to light on the date of the hearing on 14 August 2013, Counsel acting for Mr Iqbal (instructed by Taylor Knight and Wolff) endeavoured to find out what had happened. In submissions to HHJ Devlin Counsel said that he had tried to piece things together with the solicitors “and what they say is that they received the report which said it was one week. That doesn’t seem to have been discussed with Mr Iqbal at the time… and given that Mr Iqbal’s instructions to the solicitors were that the injuries were much more sort of longer lasting, it appears, and again this is a part which I’m piercing together, that the solicitors must have reverted back to this expert and that’s how this report sort of came about…”.[25]In his first witness statement dated 28 August 2013, Mr Khan stated that the Claimant was examined by Dr Zafar for the purpose of obtaining a medico-legal report in connection with his claim for personal injury and that the first report dated 17 February 2012 was provided by Dr Zafar. “Following an amendment request by the Claimant on 22.02.2012, Dr Asef Zafar prepared a second report also dated 17.02.2012 (referred to as Report 2).” Mr Khan set out that he had instructions from the Claimant that the injuries reported in Report 1 did not reflect the injuries the Claimant suffered in the accident and that his neck related symptoms were on going and that in addition to the neck pain he was also suffering from right wrist and shoulder pain. He said that he did not have the Claimant’s authority to disclose report 1.[26]Mr Khan continued in his first witness statement to say that he received the second report on 24 February 2012, that he showed it to the Claimant and received instructions from him to disclose on that same day.[27]This account is contradicted by Mr Iqbal in his affidavit dated 29 September 2015. He says he was shown the first medical report and he said that he expressed surprise at the contents of the report as it referred to his symptoms continuing for a week when they only lasted 2-3 days and he denied ever complaining that the injuries had lasted longer.[28]This is a straight conflict in account of how the amendment came about and Mr Khan provided a detailed statement dated 21 January 2015 explaining the setting up of Taylor Knight & Wolff Limited and his involvement in this RTA. He explained how the solicitors were in an embroyonic state and that they only had some basic computers and IT equipment. He explained that Mr Iqbal’s claim came to the firm from a claim management company (On Time Claims) and that they employed Med-Admin Limited (a medico-legal reporting agency based in Manchester) to provide the medical evidence. He repeated in this statement that Mr Iqbal was not happy with the content of the medical report “as the injuries recorded therein did not reflect the injuries he sustained. I had specific instructions not to disclose the medical report. As a result we refererd that matter back to Med-Admin. By that time experience had shown that the most effective way of ensuring good contact with Med-Admin was by post addressed to the general manager as emails tended to be dealt with by a myriad office workers and were occasionally ignored or lost in the system. Exhibit KAK5 is the letter which was sent to Med-Admin for forward transition to Dr Zafar. At exhibit KAK6 is the email response from Med-Admin dated 24.02.2012 attaching Dr Zafar’s amended report. On receiving the report I telephoned the Claimant, read the report to him and obtained his authorisation for disclosure.”[29]Mr Khan relies upon the letter dated 22 February 2012 as being a genuine letter, sent as an amendment request to the medic. There is, of course, nothing inherently wrong with a solicitor, on his client’s instructions raising points with the medic and seeing whether the medic remains of the same of opinion. The letter allegedly sent to Med Admin Limited on 22 February 2012 exhibited to the statement points out areas that are said not to have been dealt with and asks that a copy of that letter together with a copy of the original report “Please ask the expert to review the Claimants comments as set out above in line with the medical report he has prepared and his notes following the examination. In the event that the expert, upon review of his clinical notes, original report and the comments of the Claimant feels it appropriate to prepare an amended report to do so in compliance with CPR Part 35. Please advise the Claimant that the report must be prepared independently for the attention of the Court.” Mr Khan also exhibited an email at 15.28 on 24 February 2012 which said “Please find attached the amended report for Muddassar Iqbal.” That email did not mention the letter of 22 February 2012 and does not include a copy of that letter.[30]The letter was first provided to the solicitors for Liverpool Victoria by Dr Zafar in the form of a PDF document called “Amendment Instructions (4).pdf”. Mr McCann, acting on behalf of Liverpool Victoria, had the letter analysed and it was found to have embedded in it meta data of a letter written on 28 August 2013 (18 months after the letter was supposed to have been written). This is, in my judgment, strong prima facie evidence that the letter was not created until August 2013 which is the time when Mr Khan was in the process of writing his own witness statement.[31]An application was made on behalf of Liverpool Victoria in order to obtain inspection facilities so that the provenance of the letter could be ascertained. In response to that application, Mr Khan provided another statement saying that he only had a hard copy of the letter containing the amendment instructions and that he typed those instructions back into the computer. In my judgment, that is an unusual way for a solicitor to deal with such a piece of correspondence – while Mr Khan talks about technical difficulties with a scanner, no explanation is given for not simply photocopying the letter or photographing the letter and emailing it. No explanation was given at the time of providing the letter that it had been necessary to retype the letter back into the computer.[32]In his affidavit of 31 January 2016, Dr Zafar exhibited the chain of email correspondence, which started with the email from Mr Khan to Krystal at med-admin at 12.47 on 24 February 2012, the email from med-admin to uk-doctors at 12.50 forwarding the email from Mr Khan and then the email from Dr Zafar’s personal secretary, Gregory Jardella, to Dr Zafar at 14.34 to Dr Zafar and then the emails between Dr Zafar and Mr Jardella. The emails make no mention of there having been a letter dated 22 February 2012. It could be expected that such a letter would have been referred to had it been in existence before the email exchange. It is also to be noted that the initial email goes to a named individual “Krystal” and that Mr Khan was not having to deal with many different office staff such that requests or queries could be mislaid.[33]I am satisfied that the instructions to amend the report came through the email exchange and not by a letter dated 22 February 2012. Having come to that conclusion, the inevitable inference is that the letter was constructed (as the metadata supports) in August 2013 when Mr Khan was writing his witness statement. Not only does that provide direct evidence that the letter dated 22 February 2012 was not in fact the source of the instructions to amend the report (ground B4) but it also gives support to Mr Iqbal’s account, which is otherwise attacked on the basis that he continued with the lie about the extent of his injuries.[34]It is said on behalf of Mr Khan that Mr Iqbal had a motive for the constructing a false account for the creation of two accounts. It seems to me that must be correct as, if Mr Iqbal was giving a false account to his solicitors in order to recover greater damages, then it suits his purposes to blame the creation of that false account upon his solicitors. However, it would have been more straightforward for him to just stick to the same story if he were creating the false account of what happened. The existence of that letter gives strong corroboration for Mr Iqbal’s account of what happened in the preparation of his case. I do not accept Counsel’s submissions that it is “wholly unsafe” to place any reliance on Mr Iqbal’s evidence and that there is not a strong prima facie case.[35]I find that there is a strong prima facie case and that the evidence of the creation of the 22 February 2012 letter provides strong corroborative evidence that Mr Iqbal is telling the truth when he makes the accusations he does. I accept that Mr Iqbal did persist in the false account of the extent of his injuries but he explains that on the basis that he had been advised by his legal advisers to take that course. In my judgment that is a potential explanation for his behaviour and it cannot be said, at this permission stage, that it undermines the strong evidence that Mr Khan was willing to mislead the court.[36]In addition to finding that there is strong prima facie evidence against Mr Khan on the criminal standard, I am also satisfied that it is both in the interests of justice and in accordance with the overriding objective that permission is granted for committal proceedings to be brought against Mr Khan under grounds B1 to B12. The substantive case only came to a halt when the existence of the two medical reports came to light, but as those substantive proceedings are now at an end there is not the danger (as highlighted in Malgar Limited v RE Leach (Engineering) Ltd [2000] FSR 393) of the undesirable situation of substantive proceedings to be continuing at the same time as committal proceedings.

The Ground setting out the allegation against Mohammed Shazed Ahmed

[37]Liverpool Victoria make the allegations against Mohammed Shazed Ahmed that he did an act that was intended to interfere with and/or was likely to have interfered with the course of justice in that on or about 14 August 2013 he advised and/or instructed the Claimant to lie on oath at his civil trial and give false evidence that his symptoms had persisted for 6-8 months when the truth was that they had settled in a small number of days.[38]In order for Liverpool Victoria to succeed in an application for permission to bring committal proceedings against Mr Ahmed it will be necessary to establish (beyond reasonable doubt) that Mr Ahmed knew that when he was advising Mr Iqbal to memorise the contents of the 17 February 2012 report giving a prognosis of 6-8 months, that was a false prognosis.[39]It is said on behalf of Mr Ahmed that the difficulty for Liverpool Victoria in this argument is that, as Mr Iqbal accepts, he had signed a witness statement which included an assertion that he had injuries from the road traffic incident which cleared up approximately 8 months after the accident. Mr Iqbal has said in his statement that he did not read that witness statement properly, it having arrived through the post, and had he done so then he would not have signed it. Even on the basis that evidence is accepted, so far as Mr Ahmed is concerned he has a witness statement signed by Mr Iqbal and a medical report from Dr Zafar which are consistent in their prognosis,[40]Counsel’s note of the hearing that took place on 14 August 2014 is that Mr Ahmed had informed him that the correct report was the one with the longer prognosis and that the other report “was produced by Dr Zafar by mistake/error”. Counsel expresses his view that on comparison of the two reports the differences are substantial and that an explanation of mistake or error is not credible.[41]It is, in my judgment, highly significant that Counsel, who was creating a complete note of what happened at the 14 August 2014 hearing, recorded that Mr Ahmed knew about the first medical report as he was explaining to Counsel that there had been a mistake or error on the part of Dr Zafar:
“I had the opportunity to discuss this issue with Shazad Ahmed of Instructing Solicitors. It was acknowledged that there were 2 reports from Dr Zafar with the different conclusions as identified above. I was informed that the correct report was the one with the longer prognosis period (which was the only one that I was sent as part of my Brief and knew about prior to the Trial). The other report, I was informed, was produced by Dr Zafar by mistake/error. I was further informed that the Defendant’s solicitors were made aware of this mistake/error and it was made clear to them that the Claimant relied upon the report with the longer prognosis period. This can be evidenced by producing copies of the previous correspondence to the Defendant’s solicitors.”
[42]As is recorded in counsel’s attendance note, Mr Ahmed alleged that the Defendant’s solicitors had been made aware of the existence of the two reports as they had been written to and informed of the mistake or error. Counsel was informed that there was evidence of such explanation contained in correspondence to the Defendant’s solicitors. The Defendant’s solicitors did not accept, at the aborted hearing, that they had been informed of the existence of the two reports and they stated “that it was only something that they became aware of when it was disclosed in the trial bundle for today’s trial”. Liverpool Victoria continue to contend that they had no knowledge of the existence of two reports until the trial bundle was provided.[43]The instructions given to Counsel by Mr Ahmed show that he had a much greater knowledge of what was happening than he now says. According to Counsel’s note (and there is no reason to suggest that it is not an accurate note of what was being said to him at the time) Mr Ahmed knew of both reports (explaining the one stating that the injury had resolved within 1 week as being a mistake) and said that the solicitors to Liverpool Victoria had been given that explanation.[44]The allegation against Mr Ahmed is that he did an act that was intended to interfere with and/or was likely to have interfered with the course of justice in that on or about 14 August 2013 he advised and/or instructed the Claimant to lie on oath at his civil trial and give false evidence that his symptoms had persisted for 6-8 months when the truth was that they had settled in a small number of days. Counsel for Mr Ahmed contends that the only evidence of Mr Ahmed having told Mr Iqbal to lie comes from Mr Iqbal himself. That is correct. Counsel further contends that the evidence of Mr Iqbal is untrustworthy as he proceeded to lie to a further doctor about his symptoms and perpetuated the case that his symptoms continued for 6-8 months and was embellishing on that lie.[45]Mr Ahmed contends that Mr Iqbal has lied on too many occasions for there to be a strong prima facie case against him. I disagree. While Mr Iqbal may have continued to perpetuate a lie, he has an explanation for doing so and his contention that Mr Ahmed was more heavily involved in the preparation for trial is supported by the information contained in Counsel’s note.[46]Counsel’s note is an important piece of evidence in this case as it was made at the time the RTA proceedings were coming to a halt upon the discovery of the two conflicting medical reports, and can be taken to be an accurate record of what was said at the time. Counsel was clearly perturbed by the existence of two reports (one of which he had not been provided with at the time of receiving his brief) and he did not accept Mr Ahmed’s explanation that the first report was merely a mistake given the number and significance of the changes between the two reports. Counsel was clearly concerned that there was a deliberate alteration of the report to put forward a stronger case for damages. He also records Mr Ahmed’s instructions to him which show that Mr Ahmed was much more heavily involved in the litigation and the preparation of the case than he is now contending.[47]In the circumstances, I am satisfied that there is a good prima facie case against Mr Ahmed. I do not accept that a court could not be satisfied to the criminal standard that Mr Ahmed knew that in telling Mr Iqbal to follow what was said in the medical report giving the 6-8 months prognosis he was engaged in seeking to mislead the court. Mr Ahmed now seeks to say that he was not heavily involved in this litigation. In my judgment he is deliberately seeking to distance himself from the true level of his engagement.[48]I am also satisfied that, even though this matter did not progress to trial, it is both in the public interest and in furtherance of the overriding objective to allow committal proceedings to be brought.[49]The allegations made against these two defendants (as against the other two defendants against whom permission to bring committal proceedings have already been granted) are fundamental to the manner in which civil justice is conducted.[50]It will be necessary for agreement to be reached with respect to directions for the future conduct of this matter. If the parties cannot agree between them then I can deal with submissions on directions in writing. It seems to me at this stage that it would be sensible for this case to be heard by a High Court Judge, and not a deputy, although I would welcome Counsel’s views on that. Her Honour Judge Karen Walden-Smith Specialist Senior Circuit Judge

Cited in 1 later judgment