Aviva Insurance Ltd v Randive [2016] EWHC 3152 (QB)

Case No ATC/16/0491[2016] EWHC 3152 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/11/2016
Before
MRS JUSTICE SLADE DBE
Between
Aviva Insurance LtdApplicantMr Vishal RandiveRespondent
MR DARREN WALSH (instructed by Horwich Farelly Solicitors) for ApplicantMR GAURANG NAIK (instructed by McMillan Williams Solicitors) for RespondentHearing Hearing dates: 16/11/2016
Judgment
[1]The Applicant, Aviva Insurance Limited applies for permission to bring proceedings against Mr Vishal Randive, the Respondent, for contempt of court by making false statements in documents verified by statements of truth, without an honest belief in the truth of those statements. The application for permission is made pursuant to CPR 81.12(3). The Applicant is also pursuing contempt proceedings in respect of a false statement made by the Respondent in an affidavit in answer to this application. No permission is required to bring proceedings for contempt of court for an untruth in an affidavit. That permission is required to bring contempt proceeding in respect of false statements in documents attested by a statement of truth and not for such proceedings in respect of affidavits wasthe subject of comment by Green J inInternational Sports Tours Ltd v Shorey and Others [2015] EWHC 367 (QB) at paragraph 41 and by Arnold J in Hydropool Hot Tubs Ltd v Roberjot [2011] EWHC 121 (Ch).[2]The statements which are the subject of this application for permission were made by the Respondent in a witness statement and in his responses to the Applicant’s Part 18 Request for Further Information. These documents were made for the purpose of a claim by the Respondent for damages arising out of a road traffic accident on 25 August 2013. The Applicant, the insurer of the driver at fault, admitted negligence but denied causation of the personal injury and consequential loss alleged by the Respondent. The Applicant put the Respondent to proof of alleged loss and damage. For the purposes of this judgment references to the Applicant include references to the driver.[3]By Particulars of Claim issued in the County Court the Respondent alleged:
“4… on 25 August 2013 at approximately 15:30 hours, the Claimant was stationary at the M25 toll at Dartford Tunnel in Cambridge when the Defendant’s driver, who was proceeding behind the Claimant, failed to slow down and maintain a safe breaking distance, colliding into the rear of the Claimant’s vehicle”
The Respondent alleged that as a result of the driver’s negligence he sustained ‘soft tissue injuries to his neck and back’. Details were said to be set out in a medical report prepared by Dr Asghar Jaffery dated 27 February 2014. In addition to general damages, by an updated schedule of loss made on 4 February 2015 the Respondent claimed £4500 for 10 days off work, £1600 for personal training sessions for 10 months and smaller sums for travel and other consequential losses and expenses.[4]The trial of the Respondent’s claim against the Applicant was heard by District Judge Robson at the Eastbourne County Court on 30 April 2015. As before this court Mr Walsh represented the Applicant. The Respondent was represented before me by Mr Naik and at the County Court by Miss Powell. At trial following cross-examination the Respondent discontinued his claim. The Applicant was awarded its costs under CPR 44.16 on the basis of a finding by the District Judge that the Respondent’s claim was fundamentally dishonest. Costs of £8,317.23 were to be paid by the Respondent to the Applicant.[5]On 11 August 2015 the Applicant issued these proceedings against the Respondent for committal for Contempt of Court. The Respondent swore an affidavit on 5 February 2016 in answer to the application for permission to bring proceedings for contempt of court. At paragraph 19 the Respondent set out an account of a conversation which he had with his insurers, Admiral, on 26 August 2013. The Applicant obtained a transcript of that telephone conversation from Admiral. The Respondent’s account of the conversation in the affidavit forms the basis of the second application for contempt of court. No permission is required to pursue that application. It will be heard on a future date. I refused permission to adduce at this hearing the transcript of the telephone conversation with Admiral. Such permission was required and should have been sought well before the day of the hearing.[6]The principles to be applied in deciding whether to grant permission to pursue proceedings for committal for contempt of court are well known and are not in dispute between counsel. I gratefully adopt the summary of the issues relevant to the determination of whether permission should be given to bring proceedings for contempt of court set out by Cox J in Kirk v Walton [2009] EWHC 1780. At paragraph 29 Cox J said:
“I approach the present case, therefore, on the basis that the discretion to grant permission should be exercised with great caution; that there must be a strong prima facie case shown against the Claimant, but that I should be careful not to stray at this stage into the merits of the case; that I should consider whether the public interest requires the committal proceedings to be brought; and that such proceedings must be proportionate and in accordance with the overriding objective”
[7]The Applicant alleges that the Respondent made four statements in his witness statement and in his response to the Applicant’s Part 18 Request for Further Information, which were false and made by the Respondent without an honest belief in their truth. In the course of the hearing before me Mr Naik rightly acknowledged that the Respondent had attested to the falsehoods alleged in Ground 2, 3 and 4. Counsel said that there was clearly prima facie case of falsehood in each of these grounds. However they were of different degrees of gravity and that the evidence in support of the allegation of falsehood in Ground 1 was weak. He submitted that the application should be looked at in the round. The Respondent’s evidence in the County Court proceedings had been found in the costs application to be inconsistent, unreliable and lacking credibility. However Mr Naik submitted that committal for contempt of court should be reserved for the most serious lies, for example contrived accidents in road traffic claims. Mr Naik contended that courts are routinely faced with unreliable witnesses, inconsistence evidence and make adverse findings against a party but that does not call for contempt proceedings. Mr Naik submitted that the Respondent had already paid the price and had been punished for ‘his lies’; he had been ordered to pay over £8,000 in costs to the Applicant. Further, it was said that the likely cost and court time which would be spent on contempt proceedings was not warranted in light of the small sums which had been claimed by the Respondent, the costs penalty which he had been subject and the serious damage which could be caused to his career as an IT consultant.

Ground 1

[8]The Applicant contends that the following assertions in the Respondent’s witness statement were false and were made by him knowing them to be so. The witness statement was attested by the Respondent as true just before the hearing of the claim before the County Court on 30 April 2015.[9]The passages in the witness statement relied upon by the Respondent are in the following paragraphs:
“17.. I can remember that the remainder of my journey to Cambridge, after I had the accident, was very uncomfortable as I was experiencing pain in my neck and back, as well as feeling shocked. I had to stop twice in order to have a break from driving to stretch due to the pain. I would describe the pain as moderate at that point” “18…following the accident, I immediately developed the following symptoms:”
Neck pain; Back pain Shock and shakiness[10]In order to establish a prima facie case that those statements were false and known to be so when they were made, Mr Walsh relied upon the following: a letter of 25 September 2014 from the Respondent’s motor insurer, Admiral, confirming that ‘the incident’ was reported to them on 26 August 2013, the day after the accident, and that ‘their [sic] were no injuries to the policy holder or the passenger’. It was said that GP records show that when the Respondent attended his GP surgery on 30 August 2013, some 5 days after the accident, at no point did he mention that he was injured in the accident or that he had suffered any injury to his neck or back as a result of the accident. On the contrary the entry shows:
“Problem now back pain (review) History was improving, but may have exacerbated it by going to the gym”
Counsel also drew attention to the entry in the GP records on 21 August 2013:
“ ‘Problem low back pain (first) history has low back pain for 1 week active gym goer, very stressed at losing time off work due to this pain.”
Comment…..private referral done for physio, if pain does not settle after 6 weeks then see GP again for r/v’.[11]Mr Naik submitted that the GP notes cannot be relied upon as a full account of what the Respondent did or did not say to his doctor. Counsel relied upon Denton Hall Legal Services & Others v Kathryn Hilary Fifield [2006] EWCA Civ 169 paragraph 77 in which Buxton LJ held:
“What the doctor writes down as having been told by the patient, as opposed to the opinion he expresses on the basis of those statements, is not at that stage evidence of the making of the statement that he records”
. Counsel submitted that the entries on the GP records do not establish that the Respondent did not mention his accident. However it was acknowledged that the Respondent had pre-existing back pain and that he was referred to an orthopaedic surgeon, Mr Khan, because of his pre-existing problem and not because of anything as a result of the accident on 25 August 2013.[12]Mr Naik acknowledged that the medical report prepared by Dr Jaffery on 27 February 2014 which was the basis of the Respondent’s injury claim in the Particulars of Claim was written without a review of medical records. Mr Jaffery stated that:‘There is no significant history of relevant musculoskeletal or psychological problems’ when in fact the Respondent did have pre-existing back pain. This medical report recorded the following symptoms reported by the Respondent who had told him of his accident: “Pain and discomfort to the back he developed moderate pain and discomfort in the back immediately after the accident. These improved and are now mild. Pain and discomfort to the neck Mr Randhive developed moderate pain and discomfort in the neck immediately after the accident. These improved and are now mild” Mr Jaffery stated: “On the balance of probabilities, the back pain and discomfort is solely attributable to the index accident”[13]Exhibited to the affidavit made by the Respondent on 5 February 2016 resisting this application for permission to bring contempt proceedings was a second report by Dr Jaffery. This was dated 17 April 2014. Unlike the February report Dr Jaffery stated that he had reviewed the Respondent’s GP records up to 14 March 2014 and orthopaedic records dated 6 to 13 September 2013 when the Respondent was being seen by Mr Khan. Dr Jaffery expressed the opinion that on a balance of probabilities the neck pain and discomfort was solely attributable to the accident but that the back pain was due to the exacerbationof a pre-existing condition.[14]In my judgement the Applicant has not established a prima facie case let alone a strong prima facie case that the facts asserted in paragraphs 17 and 18 of the Respondent’s witness statement were false and made without an honest belief in their truth.[15]It is undisputed that before the accident the Respondent was suffering from back pain to such a degree that it led him to visit his GP who referred him to a physiotherapist. Applying the observation by Buxton LJ in Denton Hall the fact that the GP notes of the Respondent’s visit on 30 August 2013 contain no reference to the accident on 25 August 2013 causing the Respondent pain is not evidence that he made no mention of this. However the fact that the Respondent made no mention of such injury to his insurers on the day after the accident is more surprising. His statement in the Affidavit sworn in answer to these proceedings about his conversation with Admiral is said to be untrue. The Respondent saw an orthopaedic surgeon on 6 September 2013 for his back problem. It is also undisputed that the car in which he was sitting was hit from behind by the Applicant’s insured. It is unsurprising if his existing pain was aggravated by his vehicle being hit from behind. In the passages relied upon, the Respondent stated that after the accident on the journey to Cambridge he was experiencing pain in his neck and back and had to stop twice to stretch due to the pain. Further, it is said that he developed neck and back pain. In my judgement it cannot be said on the material before the court that there is a prima facie case that these paragraphs 17 and 18 of the Respondent’s witness statement were false and made without an honest belief in their truth.[16]Permission is not granted to pursue committal proceedings on the basis of Ground 1.

Ground 2

[17]The Applicant contends that the assertion in paragraph 48 of his witness statement that he: ‘Stopped driving for six months after the accident, as I was advised not to drive’ was false and was made by the Respondent knowing it to be so.[18]Mr Walsh pointed out that the Respondent’s own evidence demonstrated that his claim was untrue. In cross-examination at the hearing of his claim in the County Court the Respondent qualified his statement ‘six months I was not driving’ with ‘I’m not saying I was not driving at all, I used to go to short distances until I could feel the pain, so I was avoiding the long distance driving’. Counsel also referred to paragraph 26 of the affidavit sworn by the Respondent on 5th February 2016 to answer to this application in which he wrote:
“26… I stopped driving shortly after the accident. In fact, I only drove on one occasion to Asda’s to buy groceries. This was painful so I did not drive again”
The Respondent then referred to the answer he had given at the County Court set out above. He continued:
“I was trying to convey that I had undertaken a short journey after the accident and that this hurt so I then stopped driving but I did not put it across the way that I should have done”
[19]As Mr Walsh commented, it appears from Dr Jaffery’s report of 27 February 2014 that the Respondent did not mention to him that he was unable to drive after the accident. This was a reference to car journeys but only to record that the Respondent finds long journeys painful.[20]Mr Naik acknowledged as correct the inconsistencies relied upon by the Applicant in support of Ground 2. The Respondent said that he did not drive for six months after the accident but he did.[21]There is accordingly a strong prima facie case that the Respondent drove during the six months following the accident and that his statement that he could not drive during that period because of the accident was false and made knowing it to be so.

Ground 3

[22]The Applicant contends that the response by the Respondent to the Part 18 Request for Further Information by which he stated that the approximate speed of the Applicant’s driver’s vehicle at the point of impact was ‘30 to 40 Miles Per Hour’ and that his vehicle was shunted a ‘few metres away’ ‘in a ‘straight direction’ was false and was made by him knowing it to be so.[23]In his evidence to the County Court the Respondent revised the speed of the Applicant’s vehicle downwards to 20 to 30 mph and stated that his vehicle had been ‘rocked’ in the collision, but admitted that it had not been moved forward.[24]Mr Naik pointed out that in his evidence in the County Court the Respondent disagreed that the vehicles simply touched. He said that his vehicle jerked and ‘came back… so it was trying to move’, saying later ‘It just jerked, it moved’.[25]Counsel for the Respondent submitted that it was difficult for the Respondent to give an accurate estimate of the speed of the Applicant’s vehicle when it hit his car. The Applicant cannot properly demonstrate that the Respondent’s knew the statements of the vehicle speed to be untrue. Mr Naik acknowledged that the answers given by the Respondent in his Part 18 answer were not consistent with other statements made by him. Counsel agreed that the Respondent gave a variety of answers to the questions raised about the speed of the Applicant’s car on impact and its effect on the Respondent’s car. It was agreed that the Respondent has given inconsistent and unreliable evidence on these issues.[26]It is agreed by the Respondent that the statement he made in answer to the Part 18 request for information that on impact his vehicle was shunted a few metres away was an untruth. His later evidence was that the vehicle had not moved forward but rocked.[27]Whilst there may be some room for argument as to whether the Respondent knew that his original estimate of the speed of the Applicant’s vehicle was untrue, there is more than a strong prima facie case that he knew that his original statement that on impact his vehicle was shunted a few metres in a straight direction was untrue. The Respondent was at the wheel of his car. He must have known whether his car was pushed forward a considerable distance on impact or whether it did not move forward but rocked in its stationary position.

Ground 4

[28]The Applicant contends that the statement in paragraph 28 of his witness statement that the Respondent took 16 days off work in total following the accident, in respect of which he claimed 10 days loss of earnings as a result of the accident in the sum of £4,500, was untrue and was made knowing it to be so.[29]Mr Walsh pointed out that in his medical report of 27 February 2014 Dr Jaffery records that the Respondent told him that he took 4 weeks off work following the accident. However in the response dated 16 February 2015 to the Part 18 Request for Information the Respondent stated that he was off for a few days to avoid back pain.[30]Mr Walsh referred to the claims notification form which was completed by his solicitors on the Respondent’s behalf on 23 January 2014 in which the answer ‘no’ was given to the question ‘Has the Claimant had to take any time off work as a result of the injury?’.[31]Other evidence was relied upon by Mr Walsh to show that the claim of 10 days off work because of the accident was untrue and known by the Respondent to be so. The Respondent’s accountant confirmed by letter dated 25 June 2014 that the Respondent missed 16 days off work ‘due to injury’. The dates ran from 31st August to 30th November 2013. Apart from one the days listed by the accountant were at weekends.[32]Further, counsel for the Applicant pointed out that his GP notes show that the Respondent was taking time off for back pain before the accident. An entry recording a visit on 21st August 2013 states: ‘has low back pain for 1 week, active gym goer, very stressed as losing time off work due to this pain’.[33]The Respondent sought to explain the answer given in the claim notification form dated 23rd January 2014 sent to the Applicant’s insurers by saying that it was completed by his solicitors and ‘he did not check it carefully’.[34]The Respondent states that he obtained an accurate record on 24 June 2014 from his accountants of his time off work due to back symptoms. As for the statement of four weeks off work due to the accident in Dr Jaffery’s report of 27th February 2014, Mr Naik pointed out that a further report dated 17th April 2015 was prepared by Dr Jaffery after he had seen the Respondent’s medical records. In the later report Dr Jaffery wrote ‘I attribute 50% of the injuries described to the index accident and 50% to the pre-existing condition’. In his skeleton argument Mr Naik wrote that it was then that the claim for loss of earnings in the Schedule of Loss was reduced to reflect this percentage attribution of injury.[35]Mr Naik acknowledged that the inconsistencies in the assertions as to whether and if so how many days the Respondent took off work due to the accident were correct. However he contended that the fact that they were inconsistent did not establish that the Respondent knew the statement relied upon by the Applicant to be untrue although he acknowledged that there was a prima facie case to that effect.[36]The Respondent attested to the truth of his statement shortly before the commencementof the hearing before the County Court on 30 April 2015. In that statement the Respondent asserted that he took 10 days off work due to the accident. This reflected the claim for £4500 in respect of 10 days off work set out in the updated Schedule of Loss dated 4 February 2015.[37]The evidence of what the Respondent told Dr Jaffery before 27 February 2014 that he took four weeks off work due to the accident, what was inserted by his solicitor on his claim notification form dated 23 January 2014 that he had not taken any time off work due to the accident, the letter from his accountants on 24 June 2014 that he had taken 16 days off work due to the accident during the period between 31 August and 30 November 2013, in the answer to the Part 18 Request For Information on 16 February 2015, that he took a few days off work due to the accident, were mutually inconsistent. They could not have all been true. The statement relied upon by the Applicant, the Respondent’s statement attested to on the day of the hearing on 30 April 2015 for the purpose of the hearing before the County Court, appears to have been based upon the number of days listed in his accountant’s letter, alleged to have been adjusted to take into account Dr Jaffery’s assessment in his report of 17 April 2015 that 50% of days off were caused by the injury in the accidents. It is curious that a document, the Updated Schedule of Loss, was said in the skeleton argument prepared by counsel on behalf of the Respondent for the purpose of this application to have reduced the figure claimed for loss of earnings to reflect Dr Jaffery’s report of 17April 2015 when the Schedule was updated on 4 February 2015,[38]There is a strong prima facie case that when it was made the passage in his witness statement that he took 10 days off work due to injury suffered in the accident was untrue and was known by the Respondent to be so.[39]It is not for the court on this application to make a final determination whether the claim by the Respondent in his witness statement that he lost 10 days off work due to the accident was untrue and made knowing it to be so. However the Applicant has established a strong prima facie case that this claim in the statement attestedby a statement of truth was untrue and was made by the Respondent knowing it to be so.

Conclusion

[40]It is not for a court hearing an application for permission to bring proceedings for contempt of court to decide the merits of the application for contempt. The task is to decide on the material then before the court, which has not heard oral evidence. It is to decide whether the Applicant has established a strong prima facie case as asserted in the grounds relied upon that the Respondent made the false statements in documents attested to by a Statement of Truth knowing them to be untrue.[41]Even if such a strong prima facie case is established, the pursuit of committal proceedings must be in the public interest, proportionate and in accordance with the overriding objective. Applying the overriding objective includes considering the amount of money involved, the importance of the case and allocating to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

Ground 1

[42]I have held that the Applicant has not established a strong prima facie case that the statements relied upon in paragraphs 17 and 18 of the witness statement attested to by the Respondent on 30 April 2015 as true were in fact untrue. Accordingly permission to bring contempt proceedings on Ground 1 is not granted.

Ground 2

[43]I have held that the Applicant has established a strong prima facie case that the statement relied upon in paragraph 28 of the witness statement attested to on 30 April 2015 was untrue and was made by the Respondent knowing it to be so.[44]The Respondent claimed special damages of £200 for travel expenses. This figure does not differentiate between those incurred before and after the six months period and is not large. However the assertion of being unable to drive may have had an impact on the amount awarded for general damages.[45]If Ground 2 had stood on its own I would not have considered that pursing committal proceedings would have warranted the attendant use of court time and resources. However it does not. The untruths which are the subject of Ground 2 contribute to the overall picture of the injury and loss claimed. Permission is given to pursue contempt proceedings on Ground 2.

Ground 3

[46]I have held that there is a strong prima facie case that the statement of speed in his response to the Applicant’s Part 18 Request for Further Information was false and made by the Respondent knowing it to be so.[47]The assertion that the vehicle of the driver insured by the Applicant was travelling at such speed that is caused the Respondent’s vehicle to be shunted forward by a few metres gives an impression of the severity of the impact and therefore the likelihood of injury which formed the basis of the claim pursued by the Respondent. Bringing a false claim in the courts is extremely serious. Apart from the dishonesty of bringing such a claim, false claims lead to waste of court time and resources. Although the claim brought by the Respondent was small in financial terms and contempt proceedings will be costly, in the interests of justice and the overriding objective I consider it proportionate for contempt proceedings to be pursued. Accordingly I give permission for such proceedings to be brought on Ground 3.

Ground 4

[48]I have held that there is a strong prima facie case that the statement in his witness statement that he lost 10 days off work due to the accident was false made by the Respondent knowing it to be so.[49]The claim by the Respondent that the accident caused him injury leading to time off work was the basis of the claim for £4500 made in the updated Schedule of Loss. For the same reasons as permission is granted to bring Contempt Proceedings on Ground 3 such permission is granted for Ground 4.

Disposal

[50]Permission is granted under CPR 81.12(3) to the Applicant to pursue proceedings for contempt of court against the Respondent on Grounds 2, 3 and 4 of the application of 14 August 2015.[51]Permission to bring contempt of court proceedings on Ground 1 is refused.

Cited in 1 later judgment