Liverpool Victoria Insurance Company Ltd v Khan & Ors [2018] EWHC 94 (QB)

[2018] EWHC 94 (QB)Case No HQ16X00032
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/01/2018
Before
MR JUSTICE SWEENEY
Between
LIVERPOOL VICTORIA INSURANCE COMPANY LIMITEDClaimant(1) KAMAR ABBAS KHANDefendants(2) SHAFIQ SULTANDefendant(3) DR ASEF ZAFARDefendant(4) MOHAMMED SHAZAD AHMEDDefendant
Paul Higgins (instructed by Horwich Farrelly) for ClaimantLouis Browne QC (instructed by Haider Law Solicitors) for 1st DefendantGaurang Naik (instructed by Chivers Solicitors) for 2nd DefendantJonathan Goldberg QC&Senghin Kong (instructed by Goldkorns) for 3rd DefendantGelaga King (instructed by Haider Law Solicitors) for 4th DefendantHearing Hearing date: 29 November 2017
Judgment ApprovedMr Justice Sweeney :Introduction
[1]On 21 June 2016 and 14 October 2016 HHJ Walden-Smith (sitting as a Judge of the High Court) variously granted the Claimant permission to bring contempt proceedings against the Defendants on a total of 33 Grounds (B1 - B32 & B34) – each alleging interference with the administration of justice.[2]The case was listed before me on 29 November 2017 – for determination of the Claimant’s Application Notice, dated 7 November 2017, to add seven further Grounds alleging interference with the administration of justice (C1-C7) against the 1st Defendant, and associated applications, and thereafter for the Final Hearing (which had long been fixed – with a time estimate of six days).[3]The Claimant’s principal application was opposed. In addition, and without formal application or supporting evidence, the 2nd Defendant made an application to strike out. The 3rd Defendant applied to be tried separately, and immediately.[4]In the result, I concluded that: i) Grounds C1-C7 each satisfied the tests, as correctly set out in the judgments of HHJ Walden-Smith, for granting permission to bring contempt proceedings. ii) Whether viewed through the prism of the need for due diligence or of the Denton line of cases, the bringing of such proceedings in relation to Grounds C1-C7 was not prevented as a result of any conduct by the Claimant. iii) It was plainly in the interests of justice that both the existing and the new Grounds be litigated together, and in proceedings involving all four Defendants. iv) The application to strike out by the 2nd Defendant should be refused.[5]Accordingly, along with various case management directions, I ordered that: i) The committal application in relation to all four defendants be adjourned to be listed in March 2018 with an estimated length of hearing of 10 days. ii) The Claimant be permitted to: a) Include Grounds C1-C7 in its application against the 1st Defendant. b) Rely upon the expert handwriting evidence of Ellen Radley contained in her report dated 17 November 2017. c) Rely upon the further affidavit evidence of Mudassar Iqbal dated 22 November 2017. iii) The 1st Defendant be permitted to rely upon the expert handwriting evidence of Kathryn Barr contained within her report dated 14 November 2017. iv) The 2nd Defendant’s oral application to strike out the committal application against him be dismissed. v) Costs reserved to the conclusion of the committal application.[6]I reserved the reasons for my decisions. Before summarising them, it is necessary to outline (at some length) the background, and to summarise the developments after permission was granted, the seven further Grounds, and the various arguments advanced at the hearing on 29 November 2017.

Outline Background

[7]The 1st Defendant (who founded the law firm of Taylor Knight and Wolff in Leeds in 2011) was in practise as a solicitor specialising in claimant personal injury work – which he went about sourcing by offering to pay intermediaries for introductions; the 2nd Defendant ran a claim management business called On Time Claims, which was based in High Wycombe; the 3rd Defendant, a doctor, was a General Practitioner, based in Chessington in Surrey, and also had a medico-legal practice; and the 4th Defendant (who completed his law degree in June 2010, and his legal practice course in June 2012) was employed by Taylor Knight and Wolff as a ‘paralegal’ from September 2012.[8]The Claimant’s case on the 33 Grounds upon which permission was granted by HHJ Walden-Smith arises from personal injury litigation in respect of a road traffic accident on 3 December 2011. The accident involved Mudassar Iqbal (a taxi driver), and Nicky Versloot (whose insurer is now the Claimant in these proceedings).[9]It is alleged that, after the accident, Mr Iqbal sought assistance from On Time Claims – visiting their office in High Wycombe on 17 January 2012, where he was dealt with by the 2nd Defendant; that on 23 January 2012 the 2nd Defendant passed on Mr Iqbal’s case to the 1st Defendant (for paid a fee for the introduction); and that the 1st Defendant then instructed Med-Admin Limited (a medico-legal agency run by his aunt) to arrange for a medical report to be obtained on Mr Iqbal.[10]Med-Admin Limited arranged, via the 3rd Defendant’s domain UK-Doctors.com, for the 3rd Defendant to prepare the report. He saw Mr Iqbal on 17 February 2012, and wrote a report (“the original report”) on that date – in which he indicated that Mr Iqbal had fully recovered from his injuries within a week, and that his examination was entirely normal. The Report was duly forwarded to the 1st Defendant.[11]It is alleged that, in order to falsely boost the value of the claim, and thus to enable the 1st Defendant’s firm to obtain a significant costs award via the successful pursuit of it, on 24 February 2012 the 1st Defendant instigated a revision of the original report via an email to Med-Admin Limited – asserting, amongst other things, that Mr Iqbal had ongoing moderate to severe pain in his shoulders and neck, mild to moderate pain in his wrists, and pain in his lower back, with a likely recovery period of 6-8 months. Mr Iqbal, who is a witness for the now Claimant in these proceedings, denies ever making any such assertions to the 1st Defendant. He asserts that the original report was broadly accurate – albeit that it still overstated the position somewhat.[12]Nevertheless, and without the 3rd Defendant seeing Mr Iqbal again, a revised version of the report (“the revised report”), also dated 17 February 2012, was created on 24 February 2012 by (or on behalf of) the 3rd Defendant. The revised report made no reference to the original report; did not explain how it differed from the original report; and nor did it give reasons for the changes. It is alleged to have contained the following false statements by the 3rd Defendant in relation to Mr Iqbal: i) “He developed moderate pain and stiffness in the neck and shoulder on the day of the accident. These have not improved yet.” (Ground B24) ii) “He developed mild pain and stiffness in the wrist on the day of the accident. These have not improved yet.” (Ground B25) iii) “The [taking of analgesia] is continuing.” (Ground B26) iv) “He still has difficulty in sitting for prolonged periods of time.” (Ground B27) v) “There was paraspinal muscle tenderness on both sides and muscle spasm.” (Ground B28) vi) “Examination of the upper limbs was normal.” (Ground B29) vii) “I anticipate this symptom [pain to the right wrist] will fully resolve between 6-8 months from the date of the accident.” (Ground B30) viii) “I anticipate this symptom [pain and stiffness to the neck and shoulder] will fully resolve between 6-8 months from the date of the accident.” (Ground B31)[13]Proceedings were begun on behalf of Mr Iqbal. The 3rd Defendant’s revised report was provided to the now Claimant’s solicitors, not the original report. The now Claimant’s solicitors were also provided with a witness statement purporting to be by Mr Iqbal, and to have been signed by him on 23 April 2013. Further evidence in relation to the witness statement emerged after the permission hearings – see [53] below.[14]In due course, the trial of Mr Iqbal’s personal injury claim was fixed for hearing on 14 August 2013 in the Slough County Court. The 4th Defendant was responsible for the preparation of the trial bundle, which he eventually emailed to the now Claimant’s solicitors in the early afternoon of 12 August 2013. However, clearly by mistake, the 4th Defendant served the 3rd Defendant’s original report, not the revised report, in the trial bundle.[15]It is alleged that, also on 12 August 2013, the 4th Defendant emailed the 3rd Defendant’s revised report to Mr Iqbal – who states that that was the first time that he had seen that version. Mr Iqbal asserts that, thereafter, the 4th Defendant telephoned him and said that he (Mr Iqbal) needed to memorise and to “follow” the revised report. The case was duly listed for trial before District Judge Devlin on 14 August 2013. Mr Iqbal asserts that, whilst at Court on that date, he spoke with the 4th Defendant, who told him that he needed to tell the judge that he had recovered after 6-8 months.[16]Against that background, Ground B23 alleges against the 4th Defendant 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 within a few days.”[17]It is further alleged (though not the subject of any Ground) that, at court on 14 August 2013, the 4th Defendant falsely informed counsel instructed on behalf of Mr Iqbal that the original report served in the trial bundle had been created in error; that the revised report was the correct one; and that the now Claimant’s solicitors had been so informed.[18]At all events, at that hearing District Judge Devlin made an Order requiring: i) The fee earner with conduct of the case on behalf of Mr Iqbal (i.e. the 1st Defendant) to make a witness statement by 28 August 2013 explaining what was going on. ii) The 3rd Defendant to make a statement, also by 28 August 2013, setting out all material oral and/or written instructions provided to him.[19]On Friday 16 August 2013, the now Claimant’s solicitors sent a letter to the 3rd Defendant (addressed to his NHS practice) explaining the position, and saying that they were intending to send an enquiry agent to speak with him, to find out what had been happening, and to take a statement from him.[20]There was telephone contact between the enquiry agent, Mr Heywood (of G4S Ltd) and the 3rd Defendant on 19 August 2013, and they agreed to meet the following day. Mr Heywood duly attended on 20 August 2013, when the 3rd Defendant made a witness statement in which he asserted that the correct version of the report was the original report (i.e. that Mr Iqbal’s symptoms had resolved within a week of the accident), and that he had looked at the revised report – which contained poor grammar and the incorrect use of capital letters. Ground B34 alleges that the following passage in the 3rd Defendant’s witness statement was untrue, namely that:
“This report has been altered whilst in the custody of Med-Admin and has not been altered by myself, and I have not given anyone permission to alter this report.”
The now Claimant contrasts the content of this witness statement with the content and ramifications of the 3rd Defendant’s later statement dated 22 October 2013 (see [23] – [26] below), and of his affidavits dated 31 January 2016 (see [34] – [37] below) and 19 May 2016 (see [38] below).[21]On 28 August 2013, the 1st Defendant made a witness statement in response to the Order made by District Judge Devlin on 14 August 2013. It is alleged to have contained the following false statements: i) “Following an amendment request by the Claimant [Mr Iqbal] on 22/2/2012.” (Ground B1) ii) “The Claimant’s primary concern being that his neck symptoms were ongoing…” (Ground B2) iii) “A copy of Report 2 was sent to the Claimant and authority to disclose the same was received [on or before 24/02/2012].” (Ground B3)[22]It is alleged that on 5 September 2013 the now Claimant’s solicitor, Mr McCann, spoke with the 3rd Defendant, who said that he had spoken with Mr Iqbal’s solicitor, and had realised that he should not have made his witness statement on 20 August 2013 – albeit that he asserted that it was true. He had, he nevertheless said, now taken time to read the whole chronology and the original examination of Mr Iqbal had only dealt with his initial symptoms, not his ongoing symptoms, and that was why he had amended the original report to show the ongoing position. It is alleged that the solicitor tried to explain that such an explanation was in total contradiction to the witness statement, but that the 3rd Defendant would not accept that.[23]On 22 October 2013, the 3rd Defendant made a further statement (which included a CPR Part 35 declaration) to the effect that, having since obtained the amendment request that had been sent to him on 22 February 2012, and having looked into the matter in greater detail, the original report had been an error on his behalf as it related only to Mr Iqbal’s acute symptoms, and the revised report (which he recalled doing himself) was the correct one. This further statement, which is in stark contrast to the 3rd Defendant’s witness statement made on 20 August 2013 (see [20] above), is alleged to have contained the following false statements: i) “The second report is the true representation of the incident.” (Ground B17) ii) “The first report was mistakenly written.” (Ground B18) iii) “[The first report] only represented the first few weeks he felt his acute symptoms.” (Ground B19) iv) “The amendment request was sent to me on 22nd February 2012.” (Ground B20) v) “I [have looked at the notes that I wrote down at the time and]do recall amending it myself.” (Ground B21) vi) “The first report was an error on my part and only represented his acute symptoms.” (Ground B22)[24]In due course the 3rd Defendant’s statement dated 22 October 2013 was provided to the now Claimant’s solicitors, together with an electronic version of a document entitled ‘Amendment Instructions (4).pdf’ which was said to be the amendment request that had been sent to the 3rd Defendant on 22 February 2012. Examination of the electronic document on behalf of the now Claimant is alleged to have shown that: i) It had been converted from an MS Word document entitled “Microsoft Word 28.08.13 – letter to Crown Costs Consultants.doc”. ii) It had been converted into PDF format on 28 August 2013 (the date on which the 1st Defendant had made his witness statement in response to District Judge Devlin’s Order – in which statement he had asserted that Mr Iqbal had made an amendment request on 22 February 2012 – see [21] above).[25]In consequence, the now Claimant’s solicitors made two applications (which were to be heard on 5 March 2014) for inspection facilities to ascertain the provenance of the letter.[26]On 4 March 2014 the 1st Defendant made a further statement, which was served at court the following day, in which he asserted that in order to comply with District Judge Devlin’s Order, the 3rd Defendant had needed the amendment instructions; that he (the 1st Defendant) only had a hard copy of the amendment instructions, and so (as his firm’s scanner was broken) to forward them he had typed them into a Microsoft Word file using a template from other correspondence that he had completed earlier that day; and that he had then converted the file into PDF and had then forwarded it to the 3rd Defendant. The now Claimant asserts that the 1st Defendant could simply have used his firm’s fax to email system, which was demonstrably working, and which would have avoided any need to copy type, and that this further statement contained the following false statement: “I confirm that the typed instructions were the same as the hard copy on the file” (Ground B4).[27]The applications for inspection facilities were adjourned to be heard before the Designated Civil Judge – at a hearing before whom, on 15 August 2014, Mr Iqbal served a Notice of Discontinuance. However, in response, the now Claimant made an application to set aside the Notice of Discontinuance and for a wasted costs order. The matter was adjourned until 9 February 2015.[28]In the meanwhile, on its face, on 11 November 2014 the 2nd Defendant made a witness statement – which was corroborative of the 1st Defendant’s later account of how and in what circumstances the revised report came to be adopted by Mr Iqbal - and which, it is alleged, contained the following false statements: i) “The Claimant [Mr Iqbal] regularly attended OTC’s offices to obtain assistance in translating and understanding correspondence.” (Ground B13) ii) “The Claimant rang Kamar Abbas Khan and advised him that he was not happy with the report and that it required amending as it did not accurately reflect the injuries that he sustained or his ongoing pain and suffering.” (Ground B14) iii) “On 24 February 2012 Kamar Abbas Khan of Taylor Knight & Wolff solicitors called me advising that he had spoken to the Claimant as he had received an amended medical report and that the Claimant was now happy with the content and prognosis period.” (Ground B15) iv) “I confirm that the Claimant attended the office on 25 February 2012 and signed confirming that he was happy with the report.” (Ground B16)[29]In a witness statement dated 21 January 2015, the 1st Defendant produced a number of exhibits (KAK 1-6) – including a purported file note of a conversation with Mr Iqbal on 22 February 2012; the purported letter to the 3rd Defendant dated 22 February 2012 requesting amendment of the original report; a purported file note of a telephone conversation with Mr Iqbal on 24 February 2012; a copy of an email sent to him (the 1st Defendant) at 15.28 on 24 February 2012 attaching the revised report; and a copy, on the face of it, of the 2nd Defendant’s witness statement dated 11 November 2014 (see immediately above). The 1st Defendant asserted that, by February 2012, experience had shown that the best way to communicate with Med-Admin was by post addressed to the General Manager, as emails tended to be dealt with by a myriad of office workers and were occasionally ignored or lost in the system. This witness statement is alleged to have contained the following false statements by the 1st Defendant: i) “When we wrote to him, he would invariably then visit the offices of On Time Claims.” (Ground B5) ii) “On 22.02.2012 I 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.” (Ground B6) iii) “I had specific instructions not to disclose the medical report.” (Ground B7) iv) “On receiving the report, I telephoned the Claimant, read the report to him and obtained his authorization for disclosure.” (Ground B9). v) “The amended report as agreed was then taken by me on my next visit to On Time Claims on 25 February 2012 whereupon the client attended and signed the report confirming his agreement to the same.” (Ground B11) vi) “I have explained that when a copy of the amended report request was required it had to be re-typed as we only had a file copy and the original had not been saved…” (Ground B12)[30]In addition, in connection with the same witness statement, it is alleged that the 1st Defendant: i) “...made a false document namely a file note relating to an alleged telephone conversation on 22/02/2012 involving him and the Claimant [Mr Iqbal]. A copy of the file note was exhibited to and incorporated into his witness statement…” (Ground B8) ii) “…made a false document namely a file note relating to an alleged telephone conversation on the 24/02/2012 involving him and the Claimant. A copy of this file note was exhibited to and incorporated into his witness statement…” (Ground B10)[31]On 9 February 2015, the original case was listed before HHJ Tolson QC, when it was confirmed that Taylor Knight & Wolff were no longer representing Mr Iqbal (albeit that they remained on the Court record). An Order was made giving various directions – including that Taylor Knight & Wolff, Med-Admin Limited and the 3rd Defendant disclose incoming email concerning the amendment of the original report; outgoing email sending the revised report; and any other document or email which was related to or connected with the amendment of the original report. The judge further directed that inspection be completed on 30 March 2015, and that all copies of electronic documents were to be supplied in their native format (preserving metadata). It is alleged that the 3rd Defendant conspicuously failed to comply with that Order.[32]On 21 July 2015 Mr Iqbal wrote to Taylor, Knight & Wolff asking for a copy of his file of papers. In consequence, the 4th Defendant telephoned him on 4 August 2015. The now Claimant underlines that, in his file note in relation to the call, the 4th Defendant recorded, amongst other things, that he had advised Mr Iqbal that it was not possible for him (Mr Iqbal) to be charged as “…the issue of the medical report has nothing to do with him……SA advised….that we are still on the Court record as acting for MI therefore the Defendant and their representatives should not be in contact with MI.”[33]Nevertheless, thereafter Mr Iqbal indicated that he was willing to talk to enquiry agents instructed by the now Claimant’s solicitors. In the result, on 29 September 2015, he swore an affidavit in which he asserted, amongst other things, that: i) His principal concern after the accident had been to have his car repaired – which was why he had contacted On Time Claims and had gone to their office in High Wycombe. ii) His contact at On Time Claims had been the 2nd Defendant, who had filled in various forms for him – one of which had been a personal injury form. iii) His injuries had been very minor, and he had not intended to make a claim in respect of them, but the 2nd Defendant had filled in the forms and he had followed his lead. iv) He had informed the 3rd Defendant that his symptoms had resolved within 2-3 days of the accident. v) He had been sent a copy of the original report (which had stated that his symptoms had resolved one week from the date of the accident) and had spoken with the 1st Defendant on the telephone about it, indicating to him that the report overstated his symptoms, but the 1st Defendant had told him that it was just the way that doctors worded things, and that he should not worry about it. vi) He had never informed the 1st Defendant that his symptoms were ongoing. vii) He had only attended On Time Claims’ office once, and did not require any translation services as he could speak and read perfect English. viii) He had not attended On Time Claims’ office on 22 February 2012, nor had he ever taken a copy of any medical report to their office, nor had he telephoned the 1st Defendant in the presence of the 2nd Defendant, nor had he told the 1st Defendant in any such call that his symptoms were ongoing, and the 1st Defendant’s purported file note of a telephone conversation between them on that date was false. ix) The 1st Defendant had not telephoned him on 24 February 2012 and read the revised report to him. Nor had he authorised the 1st Defendant to disclose any revised report. x) Nor had he attended On Time Claims’ office on 25 February 2012; nor seen any revised report at their office (on that or any other day); nor signed anything there to confirm that he was happy with the content of any medical report. xi) He did not see any revised report until very shortly before trial. xii) The 4th Defendant had telephoned him and had asked him whether he had a copy of the revised report, which he did not. The 4th Defendant had immediately emailed him the revised report and then telephoned him and told him that he needed to memorise and to follow its content. xiii) On the morning of the trial, he had told the 4th Defendant that the revised report overstated his symptoms, which had resolved after 2-3 days, but the 4th Defendant had told him to tell the Court that he had recovered after 6-8 months. xiv) The impression that he had got was that things would become difficult for him if he said that his symptoms had lasted for only 2-3 days, but that everything would be fine if he said that his symptoms had lasted for 8 months. xv) Thereafter, he had been required to attend an examination by another doctor, Mr Spigelman. Before that examination, the 4th Defendant had contacted him again and had impressed upon him that he needed to follow the revised report, and that if he did so everything would be fine. As a result of that pressure, he had told Mr Spigelman that his symptoms had lasted for 8 months.[34]On 31 January 2016, the 3rd Defendant swore an affidavit in which he asserted, amongst other things, that he had lost his handwritten notes relating to Mr Iqbal (albeit that the now Claimant asserts that, in an email dated 3 March 2015, the 3rd Defendant’s secretary had indicated that the 3rd Defendant did not make handwritten notes); and that, when making his statement to Mr Heywood on 20 August 2013, he had not been clear what Mr Heywood had been talking about; that he had not had the opportunity to go back to look into what the case involved because of the urgency that Mr Heywood had expressed; nor had he had the opportunity to consult his notes and to check how the reports were generated; and nor had he then remembered the amendments being made. Therefore, he had thought at the time that what he was saying in the statement was correct.[35]Further, in the affidavit dated 31 January 2016, the 3rd Defendant produced a chain of emails, sent between 12.47 and 14.50 on 24 February 2012, in relation to the revised report, as follows: 12.47 The 1st Defendant sent an email to Med-Admin indicating that he had received the original report, that he had spoken to Mr Iqbal, and that (now over two months after the accident) Mr Iqbal had confirmed that he still had moderate to severe pain in his neck and shoulders, and mild to moderate pain in his wrist for which he was taking pain killers, and that (as a taxi driver) he was required to sit for prolonged periods of time and was experiencing pain in his lower back which was making it uncomfortable for him to carry out his job. The 1st Defendant therefore requested that the 3rd Defendant review his notes from the examination, and continued:
“Given that out client is still suffering severe to moderate pain in his neck and upper back now more than 2 months from the date of the accident is it likely that he will recover over the next 6-8? If so, please can you amend the report in respect thereof. Given that our client is still suffering pain related symptoms please can you confirm whether he is likely to benefit from physiotherapy. In the event that he is please can you provide an estimation as to the number of sessions that you recommend.” 12.50 Med-Admin forwarded the email to UK-Doctors.com, with the request “Further to the conversation with Dr Zafar’s secretary, please can this amendment be made today.”
It was received by the 3rd Defendant’s secretary, Gregory Jardella. 14.34 Mr Jardella forwarded the email to the 3rd Defendant, saying:
“…I can do this amendment if you tell me 1. Is their suggested prognosis (6-8 months – we put down 1 week) acceptable? And 2. Does he need any physiotherapy?” 14.36 The 3rd Defendant replied: “Does he have any other symptoms that I have suggested 6-8 months and physio. What were his injuries.” 14.47 Mr Jardella replied: “He has no other injuries; his only symptom is: Mr Iqbal developed mild pain and stiffness in the neck on the day of the accident. These resolved 1 week from the date of the accident. His exam shows that he has no restriction or palpation. Does that need to be changed too? The 6-8 months and physiotherapy is their suggestion”. 14.48 The 3rd Defendant responded: “Which agency?” 14.48 Mr Jardella replied: “Med-Admin”. 14.50 The 3rd Defendant responded: “When did I see him?”
[36]In the same affidavit, the 3rd Defendant asserted that he had asked Mr Jardella to make the necessary amendments and to send the draft report to him to check before it was returned to Med-Admin. However, the 3rd Defendant further asserted, Mr Jardella had not sent the draft report back to him to check, but had forwarded it to Med-Admin after amending it. As mentioned above, an email (produced by the 1st Defendant in his statement dated 21 January 2015 -see [29] above) shows that the revised report was emailed to him at 15.28 on 24 February 2012. The content of the revised report is alleged by the now Claimant to be broadly consistent with the request made in the 12.47 email, but to be inconsistent with the alleged letter dated 22 February 2012 from the 1st Defendant requesting the revision, and with his alleged file note of that date (both of which refer to Mr Iqbal’s severe / acute symptoms resolving after 1-2 weeks) and with the content of the 3rd Defendant’s statement dated 22 October 2013.[37]It is alleged that, in his 31 January 2016 affidavit, the 3rd Defendant also made the following false statement: “When I pressed his shoulders I noted tightness and tenderness” (Ground B32).[38]In a further affidavit, sworn on 19 May 2016, the 3rd Defendant asserted that, as a result of a specialist electronic investigation of his computer system, he now believed that he had opened and saved the revised report on the night of 19 August 2013 (in preparation for his meeting with Mr Heywood the following day), and that during that process the document (which was otherwise the same as the revised report dated 17 February 2013) had been auto-changed in certain respects by a programme on the computer and dated 19 August 2013.[39]The first permission hearing took place before HHJ Walden-Smith on 24 May 2016. It did not proceed against the 1st and 4th Defendants on that date as neither was ready, and the judge allowed the adjournment that each sought. The hearing did proceed in relation to the absent 2nd Defendant (who the judge was satisfied had been served, but who had failed to take any active part), and in relation to the 3rd Defendant (who was represented and anxious to proceed).[40]As touched on above, HHJ Walden-Smith gave judgment in relation to the 2nd and 3rd Defendants on 21 June 2016. At [7] - [27] she analysed the evidence in relation to the 3rd Defendant. At [28] - [39] she set out the relevant law and the issues for consideration. At [40] - [47] she considered the specific allegations against the 3rd Defendant – concluding (in chronological order) that there was strong prima facie evidence that his revised report dated February 2013 was false in the respects alleged in Grounds B24-B31, and that he knew them to be false; that there was strong prima facie evidence that his witness statement dated 20 August 2013 was false in the respect alleged in Ground B34, and that he knew it to be false; that there was a strong prima facie case that his statement dated 22 October 2013 was false in the respects alleged in Grounds B17-22, and that he knew them to be false; and that there was strong prima facie evidence that his affidavit dated 31 January 2016 was false in the respect alleged in Ground B32, and that he knew it to be false (albeit that, in the judgment, that Ground was said to relate to a statement in the revised report). The judge concluded, however, that she was not satisfied that there was a good prima facie case against the 3rd Defendant on three other Grounds – B33, 35 & 36. Finally, as to the 3rd Defendant, at [48] & [49] the judge concluded that the interests of justice clearly required the proceedings to be allowed to continue, that such was also in accordance with the overriding objective and therefore (given her findings with respect to the strong prima facie evidence against the 3rd Defendant) permission was granted as against him in relation to Grounds B17-22, 24-32, and 34.[41]As to the 2nd Defendant, at [50] - [53] the judge recognised that the case against him on Grounds B13-16 in respect of his witness statement dated 11 November 2014 was heavily dependent on the evidence of Mr Iqbal, but concluded that Mr Iqbal’s evidence was consistent with other evidence that was available before the court; that there was nothing in his evidence that had the appearance of embellishment; and that no reason had been put forward as to why he was saying what he was saying unless it was the truth. Accordingly, she was satisfied that there was a strong prima facie case against the 2nd Defendant, and that it was in the interests of justice, and in accordance with the overriding objective, that proceedings be brought against him. Therefore, she also granted permission on Grounds B13-B16.[42]The permission hearing in relation to the 1st and 4th Defendants took place before HHJ Walden-Smith on 27 July 2016. As also touched on above, judgment was given on 14 October 2016. At [1] – [18] of her judgment the judge set out the background and the law. At [19] – [36] she considered the Grounds and arguments in relation to the 1st Defendant, including the forceful attack made by him on Mr Iqbal’s credibility, and his contention that the amendment instruction letter dated 22 February 2013 was genuine. At [30] – [36] the judge concluded that there was a strong prima facie case that the instruction letter was not created until August 2013 (i.e. at the time that the 1st Defendant was in the process of writing his own witness statement in response to the Order of District Judge Devlin); that the instructions to amend the original report came via the email dated 24 February 2013 (which also gave support to Mr Iqbal’s account – albeit that he had persisted in the false account of his injuries); that (in chronological order) there was a strong prima facie case against the 1st Defendant in relation to his witness statement dated 28 August 2013 on Grounds B1-B3, in relation to his witness statement dated 4 March 2014 on Ground B4, and in relation to his witness statement dated 21 January 2015 on Grounds B5-B12; and that it was in both the interests of justice and in accordance with the overriding objective that permission be granted on those Grounds.[43]At [37] – [48] of her judgment the judge considered Ground B23 and the argument in relation to the 4th Defendant – who relied upon the fact that Mr Iqbal had accepted that he had signed a witness statement that he had been sent in the post (which had included an assertion that he had injuries from the accident which had cleared up approximately 8 months after the accident – albeit that he had subsequently said that he had not read that statement). The judge opined that it was significant that, at the hearing on 14 August 2014, the 4th Defendant’s instructions to counsel had shown that he had a much greater knowledge of what was happening than he now asserted. Against that background, the judge further opined that, while Mr Iqbal may have perpetuated a lie, he had an explanation for doing so, and his contention that the 4th Defendant was more heavily involved in the preparation for trial was supported by the 4th Defendant’s instructions to counsel. Therefore, she concluded, there was a good prima facie case on Ground B23 against the 4th Defendant (who was trying to distance himself from the true level of his engagement); and that it was both in the public interest and in accordance with the overriding objective to allow committal proceedings to be brought on that Ground. Finally, at [49], the judge concluded that the allegations against the 1st and 4th Defendants were fundamental to the manner in which civil justice is conducted.

Developments after permission was granted

[44]On 2 March 2017 HHJ Walden-Smith ordered that, at the committal hearing, the Claimant could rely upon the evidence already served in support of the application for permission, and that the Claimant should file and serve any additional evidence upon which it wished to rely by 4pm on 3 April 2017, and that the Defendants should file and serve any evidence that they intended to rely upon by 4pm on 2 May 2017. The Claimant duly filed and served its additional evidence (relevant to the Grounds upon which permission had been given) in time.[45]In the meanwhile, on 12 April 2017, the 2nd Defendant appeared before O’Farrell J for the Final Hearing of a contempt application brought by the insurers EUI in connection with a false claim made by the 2nd Defendant in relation to an accident that was said to have occurred in June 2012, and in relation to which he was represented by the now 1st Defendant – see [2017] EWHC 1421 (QB). The 2nd Defendant, who admitted contempt in that case, sought the adjournment of sentence until the completion of the instant proceedings – indicating that his case in the instant proceedings was that he did not sign the statement (dated 11 November 2014) in his name, but could not positively say that the now 1st Defendant had done so. The adjournment was refused, and the 2nd Defendant was sentenced to 9 months’ imprisonment.[46]On 19 April 2017 the now Claimant’s solicitors wrote to the 2nd Defendant’s solicitors indicating that they were aware of the “concessions” that the 2nd Defendant had made at the hearing before O’Farrell J on 12 April 2017 (above), and reminding them that the 2nd Defendant had to provide details of his case in full by 2 May 2017.[47]On 24 April 2017 the Final Hearing in this case was fixed for the end of November 2017. Neither the 1st nor the 2nd Defendant filed or served any evidence by 2 May 2017.[48]On 16 May 2017 the now Claimant’s solicitor wrote to the 2nd Defendant’s solicitors again, enclosing a copy of their letter of 19 April 2017 and concluding:
“Your client now has the opportunity to provide such evidence and in the circumstances, we await to receive that evidence. If your client is not going to provide such evidence please confirm the position.”
Nothing appears to have been received in response.[49]The 1st Defendant swore an affidavit on 7 August 2017, in which (the now Claimant alleges) he effectively admitted having attempted to steer Mr Iqbal to say that the original report was incorrect; stated (patently untruthfully it is said) that the pain and symptoms that Mr Iqbal had complained of to his GP on three separate occasions was the same that he had advised the 1st Defendant of in his amendment instructions on 22 February 2012; and asserted that it did not occur to him to check whether the 3rd Defendant’s revised report was CPR compliant. At all events, on 22 September 2017 the 1st Defendant made a successful application for relief from sanctions, which will enable him to deploy his evidence at the Final Hearing.[50]On 4 October 2017 the 4th Defendant swore an affidavit in which (as the now Claimant underlines) he accepted that, after his telephone conversation with Mr Iqbal on 4 August 2015 (see [32] above) he had instructed an enquiry agent to attend at Mr Iqbal’s house – and that the agent attended on 24 & 25 November 2015.[51]On 19 October 2017, the 2nd Defendant served an application bundle on the now Claimant which, finally, set out his position. Reliance was placed by him on a report (dated 22 September 2017) from a handwriting expert, Mrs Allan, whose conclusion (that there was moderately strong evidence to support the proposition that someone other than him wrote the disputed signature in imitation of his style) supported his assertion that he had not signed the witness statement bearing his name dated 11 November 2014 – albeit that Mrs Allan also concluded that the evidence was not conclusive, and that the possibility that he did write the signature could by no means be excluded.[52]Three days later, on 23 October 2017, the 2nd Defendant served a witness statement (dated that day) in which he denied having signed the witness statement dated 11 November 2014 bearing his name. Rather, he asserted that in November 2014 the 1st Defendant had contacted him stating that there was a danger that the courts could strike out the case because Mr Iqbal had stopped communicating with his solicitors, and that he had drafted a statement for him (the 2nd Defendant) which he was sending over for him to read and sign. The 2nd Defendant asserted that he received that statement at 18.10 on 7 November 2014 via email, but that he had ignored it as the contents were false. In particular, he asserted that he was not aware of any medical report; that Mr Iqbal had not attended his office on 22 February 2013 (when he had been abroad on holiday and had only returned via Luton Airport at 21.15); that nor had Mr Iqbal brought a copy of any medical report; that nor had he been aware that Mr Iqbal had received a revised report; that nor did either the 1st Defendant or Mr Iqbal attend his office on 25 February 2012; and that nor did he see any revised report. He had not, he said, replied to the 1st Defendant’s email, nor had he signed the statement at any point or printed his name or written the date. Further, he said, examination of the properties of the draft statement showed both that the 1st Defendant was the author, and that it had last been modified by him. He asserted that the 1st Defendant had tried to contact him again thereafter on numerous occasions, but that he had ignored his calls.[53]On 25 October 2017, before Haddon-Cave J, the now Claimant consented to an application by the 2nd Defendant to introduce the above-mentioned evidence. In the consent order, all parties were given permission to serve handwriting evidence by 15 November 2017. However, it is said that it was recognised that the 1st Defendant’s handwriting evidence had emerged late, and that the direction did not debar any party from making any application if evidence was served after 15 November 2017.[54]ln consequence of the 2nd Defendant’s evidence, on 31 October 2017 the now Claimant’s solicitor invited Mr Iqbal to consider more carefully the signatures on the witness statement in his name dated 23 April 2013.[55]Mr Iqbal searched through his stored emails, and found two from the 1st Defendant dated 26 April 2013, timed as follows: 17.43: In which the 1st Defendant attached a draft of his witness statement and had asked him to consider who lived at his address; how long he had lived there; where he lived before; how long he had been employed as a taxi driver; and to complete the statement to scan it and to email it back – but not to sign it. 17.50: In which the 1st Defendant had attached a completed draft (in the sense that the further information sought has been added).[56]In consequence, Mr Iqbal recalled that, in the period between the two emails, he had spoken with the 1st Defendant on the telephone and had given him the information sought in the first email. Mr Iqbal also carefully considered the signatures on the statement dated 23 April 2013, and having done so had concluded that he did not believe that he had written them – for example, the ‘M’ was not how he would sign it.[57]In the result, the now Claimant variously alleges that:(1) The statement dated 23 April 2013 purporting to have been signed by Mr Iqbal is different to the one attached to the email.(2) In any event, the date of 23 April 2013 must be false (which is consistent with the 1st Defendant’s request on 26 April 2013 that the statement be signed but not dated, and with an email timed at 10.03 on 25 April 2013 from the 4th Defendant to the now Claimant’s then file handler).[58]As indicated above, the Claimant’s Application Notice was dated 7 November 2017. Having taken instructions, on 8 November 2017 the Claimant’s solicitor instructed an expert, Ellen Radley, to examine the witness statement dated 23 April 2013 in Mr Iqbal’s name.[59]In the meanwhile, the 1st Defendant had instructed another expert, Kathryn Barr, to examine the statement dated 11 November 2014 in the name of the 2nd Defendant. In a report dated 14 November 2017 she concluded that:
“The limitations of the specimens are such that I cannot offer any strong opinions. Nevertheless, the differences are such that, in my opinion, there is limited evidence that Shafiq Sultan did not write the questioned signature. By that I mean that, while I cannot exclude the possibility that the signature was written by Shafiq Sultan, on the balance of probabilities, it is more likely that some other person produced the signature (making little or no attempt to copy the genuine signature design).”
[60]In her report (which was served immediately on receipt on 17 November 2017) Mrs Radley concluded that, on the documents before her, the five questioned signatures on the statement dated 23 April 20 in Mr Iqbal’s name were not his normal and natural writings, and that there was strong evidence to support the proposition that the questioned signatures were simulations.[61]On 22 November 2017 Mr Iqbal swore an affidavit dealing with his further evidence. It was served the following day.

The Additional Grounds

[62]The seven additional Grounds on which the application for permission was made against the 1st Defendant, the first five of which related to the witness statement dated 11 November 2014 in the name of the 2nd Defendant, were as follows: C1: He drafted a witness statement in the name of the 2nd Defendant which contained a false statement that he knew to be false, namely that “The Claimant attended the office on 22 February 2012 and brought with him a copy of his medical report.” C2: He drafted a witness statement in the name of the 2nd Defendant which contained a false statement that he knew to be false, namely that “On 24 February 2012 Kamar Khan of Taylor Knight and Wolff solicitors called me advising that he had spoken to the Claimant as he had received an amended medical report and that the Claimant was now happy with the contents and prognosis period in the report…” C3: He drafted a witness statement in the name of the 2nd Defendant which contained a false statement that he knew to be false, namely that “I confirm that Kamar Khan attended the office on 25 February 2012 and brought the amended medical report of the Claimant with him.” C4: He drafted a witness statement in the name of the 2nd Defendant which contained a false statement that he knew to be false, namely that “I confirm that the Claimant attended the office on 25 February 2012 and signed confirming that he was happy with the report.” C5: He forged the signature of the 2nd Defendant on the witness statement. C6: In his own witness statement, dated 21 January 2015, he made a false statement that he knew to be false, namely that “I refer to the Statement of Shafiq Sultan dated 11 November 2014…”, which was false because Shafiq Sultan was not the maker of the witness statement dated 11 November 2014. C7: He forged, or caused to be forged, the signatures of Mudassar Iqbal on a witness statement bearing the date 23 April 2013.[63]The application was supported by witness statements, dated 7, 22 & 28 November 2017, by the Claimant’s solicitor, Mr McCann. In his statement dated 22 November 2017, Mr McCann argued that there was now a strong prima facie case of forgery; that permission should be granted on Grounds C1-C7; and that the Claimant should be permitted to rely on the evidence of Mrs Radley and the further evidence of Mr Iqbal. In his last statement Mr McCann underlined that the Claimant had not been on notice of any problem with signatures until the 2nd Defendant had belatedly shown his hand. Accordingly, Mr McCann’s primary submission was that the Claimant could not be criticised for the late introduction of its evidence in relation to signatures. In particular, he submitted, the Claimant could not, with reasonable diligence, have been expected to obtain the evidence for service in compliance with the Court’s timetabling, it was not a relief from sanctions situation, and the court could avail itself of its more general power to extend time without the need to consider the Denton criteria, and even if the Denton criteria applied, the Claimant’s application should be allowed.[64]Mr McCann further argued, by analogy with the post judgment cases Ladd v Marshall [1954] 1 WLR 1489 and Singh & others v Habib & AIG [2011] EWCA Civ 599, that the law recognises both the need for parties to bring their cases forward expeditiously and consistent with Court directions; that it would be an affront to justice for a Court to be asked to turn a blind eye to matters that are important to the subject matter in dispute, even if they emerge late; and that the fresh evidence test (i.e. that it could not have been obtained previously with reasonable diligence for use at the trial, that it would probably have an important influence on the outcome of the case, and that is apparently credible) was important because it defined the interface between the two principles.[65]Nevertheless, Mr McCann argued, if an application for relief from sanctions was required in relation to the service of the evidence of Mrs Radley, the delay of two days was not, viewed in the context in which it arose, significant or serious, and had in any event to be seen against the background that the disclosure of the 2nd Defendant’s evidence was more than 6 months late. Secondly, there was a good reason for the breach, as the time period was too short for the additional steps that the Claimant had to take. Thirdly, given the likely landscape of the litigation, nothing was to be gained by refusing the Claimant permission to deploy.

Summary of the Arguments

[66]On behalf of the Claimant, Mr Higgins relied on the content of Mr McCann’s witness statements in support of the application to add Grounds etc, and variously argued that:(1) The cause of the late application was the (clearly deliberate) decision of the 2nd Defendant not to break cover in these proceedings until the third week of October 2017.(2) The Claimant had reacted swiftly and had obtained the evidence that underlay the proposed further Grounds C1-C7.(3) The evidence in relation to each Ground passed the tests (as correctly identified in HHJ Walden-Smith’s judgments) for permission to be granted.(4) In particular, although in the past Mr Iqbal’s evidence had been that he had signed the witness statement in his name dated 23 April 2013, his now evidence, that he had not signed it, was supported by both expert and other evidence.[67]In his Opening Note on behalf of the 1st Defendant, Mr Browne QC emphasised that the 1st Defendant wholly denied each of the allegations set out in proposed Grounds C1 – C7, and explained that the 1st Defendant opposed the Claimant’s application for permission in relation to those Grounds for the following reasons:(1) The application was made far too late and, if granted, would of necessity result in the adjournment of the Final Hearing – because the oral expert evidence of the handwriting experts would reasonably be required at the adjourned hearing.(2) It was not possible, consistent with a fair hearing for the 1st Defendant, to grant permission in relation to the new Grounds and then to try them separately from those already before the Court in relation to which permission had been granted – all Grounds had to be heard together at one and the same time.(3) The proceedings themselves had been ongoing for nearly two years, and the events with which they were concerned had commenced with the accident on 3 December 2011 (some 6 years ago). The case was therefore already very old, any further delay would be wholly inequitable for the 1st Defendant and therefore the hearing must proceed as directed.(4) None of the expert handwriting reports expressed the view that the author of the disputed signatures was, to the criminal standard, someone other than the 2nd Defendant which, quite independent of the preceding points, was sufficient to dispose of the application – as the Claimant was bound to fail to prove, to the criminal standard, that the 1st Defendant had forged the signatures as alleged.(5) The 2nd Defendant was a proven liar, who had already been committed to an immediate nine-month custodial term for contempt by O’Farrell J, from whose sentencing remarks it appeared that: (i) The claim that the 2nd Defendant had brought in that case had been wholly false and dishonest, and had involved a fraud on the grand scale. (ii) He was well versed in the making of dishonest statements in documents verified by a Statement of Truth. (iii) He had offered in that case to purge his contempt and to assist the Claimant in this case, which he had now done by lying in the witness statement that he had now given - no doubt in the hope of obtaining a reduced sentence. (iv) He had sought to allege that the 1st Defendant had made him make and maintain the false claim – but at no point had the 1st Defendant ever been the subject of an application to commit in respect of those assertions, which were scandalous and untrue.[68]In his oral submissions, Mr Browne underlined that:(1) If the application was granted, an adjournment would be needed, and that the previous time estimate of six days would be inadequate.(2) Judge Walden-Smith’s Order, dated 2 March 2017, was that the Claimant must serve any additional evidence by 4pm on 3 April 2017, and the Defence by 4pm on 2 May 2017.(3) Haddon-Cave J’s Order on 25 October 2017 had permitted the 2nd Defendant to rely on the evidence that he had belatedly put forward.(4) Mr Iqbal’s affidavit dated 22 November 2017 was therefore made many months out of time and there was no application for an extension of time.(5) The combined effect of CPR 32.10, CPR 3.9, and the Denton line of cases was that it was incumbent on the Claimant to persuade the Court that it was just to grant relief – which involved consideration of the seriousness of the breach, whether there was a good reason for failure to comply, and the overall justice of the case.[69]Against that background, and the content of Mr Iqbal’s affidavit and of the exhibits produced in it, Mr Browne submitted that:(1) It was clear that the Claimant had known about the emails of 26 April 2013 since September 2015 (when Mr Iqbal’s affidavit dated 29 September 2015 was being prepared).(2) In any event, it might be expected, given that it was the Claimant’s case that Mr Iqbal had been duped into signing his statement and coerced (when he knew that his injuries had been of short duration), that the Claimant would have asked at an early stage whether he was sure that the relevant signatures were his.(3) As the letter dated 19 April 2017 to the 2nd Defendant’s solicitors made clear, the Claimant knew, by then, about what had been said on the 2nd Defendant’s behalf before O’Farrell J on 14 April 2017, and that should have triggered an enquiry of Mr Iqbal.(4) If not then, the enquiry should have been made, and evidence obtained and served, shortly after the 2nd Defendant’s statement was served on 23 October 2017.(5) In the result, there had been serious delay in a case which already involved the most serious allegations; the breach was very serious; there had been no application for relief from sanctions; it was not in the interests of justice to grant relief as to do so would inevitably result in an adjournment.(6) Therefore, the application for permission in relation to Ground C7 should be refused.[70]As to Grounds C1 – C6, Mr Browne submitted that, if it was the Claimant’s case that it was the 1st Defendant who had signed the 2nd Defendant’s statement, then an adjournment would be required to enable the 1st Defendant’s handwriting expert to obtain proper handwriting samples and to report in the light of them.[71]Mr Browne underlined that, before permission could be granted, strong prima facie evidence had to be shown, and submitted that one would therefore expect expert handwriting evidence to the criminal standard that the signature was not that of the purported author, but was made by another – yet there was no such evidence, or anything close to it. He then re-iterated the points made in his Opening Note, and also questioned why, after the service of the Claimant’s evidence in early March 2016, the 2nd Defendant had not immediately said that he was not in the country on 25 February 2012, and had not signed the witness statement in his name dated 11 November 2014, rather than wait until over a year later. It would be wholly unsafe to grant permission in relation to Grounds C1 – C6.[72]In his Amended Skeleton submissions on behalf of the 2nd Defendant, Mr Naik argued that:(1) The Claimant had chosen not to obtain its own handwriting expert report in relation to the witness statement dated 14 November 2014, and that the evidence of the 2nd Defendant’s expert Ms Allan was therefore uncontradicted.(2) In his witness statement dated 22 November 2017 Mr McCann had sought to advance a different case against the 2nd Defendant, namely it was conceded that Ms Allan’s evidence (which was largely agreed with by Ms Barr) supported the 2nd Defendant’s assertion that he did not sign the witness statement, but asserted that that raised the question of whether the signature, if not his own, was one which he had permitted to be signed on his behalf, and to adopt as his own. Thus, it was now the Claimant’s case that they were no longer able to prove that he had signed the witness statement. However, there was no evidence that he had either permitted or adopted it.(3) By reference to paragraph 16.1 of Practice Direction 81, on an application by the Respondent, or on its own initiative, the court may strike out a committal application if it appears to the court that the application and the evidence served in support of it discloses no reasonable grounds for alleging that the Respondent is guilty of a contempt of court.(4) The notes to CPR 81.28.1.1 state that the court’s power to strike out may be exercised after as well as before the granting of permission, and that where an application to strike out is made the court is not required to undertake a mini trial or to consider the weight of the evidence. The test is whether the court is satisfied that the evidence in support of the allegation discloses no reasonable grounds for alleging that the 2nd Defendant is guilty of contempt.(5) HHJ Walden-Smith gave permission in relation to Mr Sultan on the basis that the case against him was heavily dependent on the evidence of Mr Iqbal as contained in his affidavit dated 29 September 2015, but her ability to assess his credibility on paper was very limited.(6) However, the Claimant’s position was now very different, and as a result the court was required to look at the matter afresh – in which event it was submitted that the evidence disclosed no reasonable grounds for alleging the 2nd Defendant had permitted or adopted the witness statement in his name dated 11 November 2014, and that the application to strike out should therefore be granted.(7) The application to adduce further evidence in relation to the 2nd Defendant amounted to seeking to adduce extra evidence well out of time in order to continue the proceedings against him on a different basis than that upon which permission was granted – which, in the interest of justice and finality, should be refused.[73]In his oral submissions, Mr Naik re-iterated aspects of those arguments, as well as submitting, amongst other things, that there was no evidence that the 2nd Defendant had caused anything to be made; that HHJ Walden-Smith had proceeded upon the basis that it was him who had signed the statement; and that it was relevant only to credit that in the EUI case the 2nd Defendant had adopted documents drafted by the now 1st Defendant as his own.[74]On behalf of the 3rd Defendant, Mr Goldberg QC expressed concern about costs, and (given the issues that had emerged) the adequacy of the 6-day time estimate. He recognised that an allegation of forgery against a solicitor had to be grasped, and that the court would have to decide, one way or another, as to whether there had to be an adjournment. But, he submitted, the case against the 3rd Defendant was in a different department and self-contained, and so (even if an adjournment was ordered in relation to others) the case should continue against the 3rd Defendant alone.[75]On behalf of the 4th Defendant, Mr King accepted that the four Defendants should be tried together, but stressed that he did not wish for the case to be adjourned.[76]In reply, as to the Claimant’s application to adduce further evidence, Mr Higgins submitted that reliance on Mr Iqbal was limited to matters that were different to his first affidavit which had been served in time, and was therefore consistent with the practice, under CPR 32.10, of enabling alteration. It was wrong to look at it, via Denton, as some sort of breach requiring relief. As to Mrs Radley’s expert evidence, whilst it had been served 2 days after the closing date set by Haddon-Cave J, and as Mr McCann had argued in his statement dated 22 November 2017, Mr Higgins submitted that a delay of two days did not, in the particular circumstances of this case, amount to a serious and significant breach, there was a good reason for the breach, and it was in the overall interests of justice that the evidence be adduced.[77]Mr Higgins also relied upon Mr McCann’s submissions in relation to Ladd v Marshall. As to reasonable diligence, prior to April 2017 there had been nothing that reasonably triggered a need to investigate the relevant signatures. What the 2nd Defendant had asserted to O’Farrell J did not reasonably trigger a need to investigate either. Rather, against the background that insurers did not have unlimited funds, it had been appropriate for the Claimant to enquire, in the terms of the letters sent in April and May 2017, as to whether the 2nd Defendant was going put forward a defence in the instant proceedings and, if so, what it was going to be. It was only when the 2nd Defendant had finally served his evidence that further investigation had been reasonably required, and it had been pursued with reasonable diligence.

My reasons

[78]Notwithstanding the necessary length of the outline (above) of the background, it seemed to me that the Claimant’s case on Grounds B1 - B32 & B34 as advanced before HHJ Walden-Smith was relatively straightforward, namely that:(1) To falsely boost the value of the personal injury claim made by Mr Iqbal, and thereby to obtain a significant costs award by the successful pursuit of the claim, on or about 24 February 2012, the 1st Defendant instigated the creation by the 3rd Defendant of a revised medical report with false content.(2) The report was duly created, by or on behalf of the 3rd Defendant, on or about 24 February 2012, and knowingly included the false statements alleged against the 3rd Defendant in Grounds B24 – B31.(3) The revised report of the 3rd Defendant, not his original report, was then disclosed to the now Claimant.(4) The 4th Defendant gave the game away in the run up to the trial hearing on 14 August 2013 when, by mistake, on 12 August 2013, he served the original report of the 3rd Defendant on the Claimant in the trial bundle, rather than the revised version.(5) Also on or about 12 August 2013, and on 14 August 2013, the 4th Defendant (in support of the 1st Defendant’s scheme) urged Mr Iqbal to give false evidence in the respects alleged against the 4th Defendant in Ground B23.(6) After the Court had required an evidential explanation as to what had happened, a number of cover ups were attempted, variously involving the 1st, 2nd and 3rd Defendants, in that: (i) The 3rd Defendant made a witness statement dated 20 August 2013 (denying any involvement in the creation of the revised report) which, to his knowledge, included the false statement alleged against him in Ground B34. (ii) The 1st Defendant made a witness statement dated 28 August 2013 (claiming that the instigation for the revised report had come from Mr Iqbal) which, to his knowledge, included the false statements alleged against him in Grounds B1 – B3. (iii) The 3rd Defendant made a further witness statement dated 22 October (admitting involvement in the creation of the revised report after receipt of a letter from the 1st Defendant dated 22 February 2012 – an electronic copy of which was attached to the statement) which, to his knowledge, included the false statements alleged against him in Grounds B17 - B22. (iv) The 1st Defendant made a further witness statement dated 4 March 2014 (seeking to explain why and how the electronic version of the letter dated 22 February 2012 produced by the 3rd Defendant had in fact been typed on 28 August 2013) which, to his knowledge, included the false statement alleged against him in Ground B4. (v) The 2nd Defendant made, or caused to be made, a witness statement dated 11 November 2014 (supportive of the assertions later made by the 1st Defendant in his witness statement dated 21 January 2015) which, to his knowledge, included the false statements alleged against him in Grounds B13 – B16. (vi) The 1st Defendant made a further witness statement dated 21 January 2015 (producing various documents, and making further assertions as to Mr Iqbal’s conduct and the need for the revision request letter dated 22 February 2012 addressed to the 3rd Defendant) which, to his knowledge, involved making the false statements alleged against him in Grounds B5-B7, B9, B11 & B12, and producing two false file notes (dated 22 February 2012 and 25 February 2012 respectively) as alleged against him in Grounds B8 & B10. (viii) On 31 January 2016 the 3rd Defendant swore an affidavit (producing, for the first time, a chain of emails dated 24 February 2012 which was said to include the actual request made by the 1st Defendant to the 3rd Defendant for the original report to be revised, and asserting that the alterations had, with the 3rd Defendant’s permission, been made by his secretary, who had sent off the revised report without giving him the opportunity to check it) which, to his knowledge, involved making the false statement alleged against him in Ground B32.[79]There was no dispute that, in granting permission in relation to Grounds B1-B32 & B34, HHJ Walden-Smith had set out and applied the correct legal tests.[80]I carefully considered, and ultimately agreed with, the reasoning and conclusions of HHJ Walden- Smith in relation to those Grounds – in particular as to the prima facie credibility of Mr Iqbal’s evidence (notwithstanding the matters and arguments relied upon to his discredit) in view of the support provided to it by other aspects of the evidence, and the application of common sense, the significance of the alleged cover up and its changing nature, and (when all relevant evidence was taken into account) as to the strength of the prima facie case against each of the Defendants on those Grounds.[81]I also concluded that, in accordance with HHJ Walden-Smith’s Order, the Claimant had served its evidence in relation to those Grounds by 4pm on 3 April 2017.[82]Equally, on all the evidence, and up to that point, I could see no lack of reasonable diligence in not asking Mr Iqbal to double check his acceptance that he had signed the statement dated 23 April 2013 (albeit that there was evidence that undermined the validity of that date), nor to instruct a handwriting expert – whether in relation to that statement, or the statement in the name of the 2nd Defendant dated 11 November 2014.[83]Nor, in my view, was there a lack of reasonable diligence after the claim made on behalf of the 2nd Defendant, at the hearing before O’Farrell J on 12 April 2017, that the signature on the statement in his name dated 11 November 2014 was not his. Rather it was, in my view, reasonable for the Claimant to first see whether the claim was going to be pursued in the instant proceedings by compliance with HHJ Walden-Smith’s Order as to Defence service by 4pm on 2 May 2017. Accordingly, it was, in my view, reasonable for the Claimant’s solicitor to pursue the matter in correspondence in the terms of the letters that were sent to the 2nd Defendant’s solicitors in April and May 2017 – rather than immediately embarking on a potential wild goose chase.[84]That, in my view, remained the position until 19-23 October 2017 and the eventual service, long out of time, by the 2nd Defendant of the evidence upon which he now seeks to rely - in particular, that of the handwriting expert Mrs Allan, which supports his case as to the signature on the statement dated 11 November 2014 in his name.[85]That did trigger the need for the Claimant to act with reasonable diligence in response. In the result, and albeit that it might have moved a little faster, I concluded that, in all the circumstances as outlined above, the Claimant had done so in relation to its response to the 2nd Defendant’s evidence, and also as to the further enquiries of Mr Iqbal and the obtaining of Mrs Radley’s expert evidence.[86]To any extent, which I doubted, that reliance on the evidence of Mrs Radley and Mr Iqbal required relief from sanctions, it seemed to me that, in each instance, the arguments advanced (whether directly or implicitly) on behalf of the Claimant had considerable force, and that the answer to each of the Denton questions was favourable to the Claimant – such that relief should be granted.[87]In granting permission in relation to the proposed Grounds C1 – C7, and taking them in chronological Order, I concluded that:(1) As to Ground C7, I disagreed with Mr Browne’s submission that expert evidence to the criminal standard was required. The question was whether the combination of all the relevant evidence gave rise to a strong prima facie case to the criminal standard. The evidence of Mr Iqbal was prima facie credible, was supported by the evidence of Mrs Radley, and that evidence (in combination with the other evidence as to the creation and pursuit of the revised report, the emails in April 2013 as to the signing or otherwise of the statement, and the wider evidence) provided a strong prima facie case to the criminal standard against the 1st Defendant – which it was in the public interest, and in accordance with the overriding objective, to grant permission in relation to.(2) As to Grounds C1-C5, I again disagreed with Mr Browne’s submission that expert evidence to the criminal standard was required. The evidence from the copy emailed to the 2nd Defendant was that the 1st Defendant was the author of the document, and that it was last amended by him. It was first produced by him in his statement dated 21 January 2015 and relied upon by him as being consistent with the account put forward by him in that statement, and included (as with his own statement) statements, as set out in Grounds C1-C4, which the other evidence shows to have been false. Combining all the relevant evidence, there was therefore a strong prima facie inference that the 1st Defendant had both drafted and signed the statement, and that each of the statements in it which was the subject of a ground was, to the 1st Defendant’s knowledge, false. Nor was there anything inconsistent, unfair or unjust, with the pursuit of those Grounds and the pursuit of Grounds B13-B16 (each of which alleges that he “made or caused to be made a false statement”) in the manner now alleged against the 2nd Defendant. In the result, it was in the public interest, and in accordance with the overriding objective, that permission be granted in relation to Grounds C1-C5.(3) As to Ground C6, there was clear evidence that the 1st Defendant had made the statement dated 21 January 2015 and thus, combined with the evidence in relation to Grounds C1-C5, a strong prima facie that the relevant statement was, to his knowledge, false. Nor was there anything inconsistent, unfair or unjust in its pursuit. In the result, it was in the public interest, and in accordance with the overriding objective, that permission be granted in relation to Ground C6.[88]As to the 2nd Defendant’s application to strike out, I concluded that (quite apart from the absence of any formal application and supporting evidence) it was self-evident that (notwithstanding the new handwriting evidence which, in any event, did not exclude him from being the author) there was a strong prima facie case against the 2nd Defendant upon the basis now put (the lateness of which was entirely the fault of the 2nd Defendant) and that it remained in the public interest, and in accordance with the overriding objective, for the proceedings against him to continue to a resolution on the evidence.[89]Against the background of the strength of my conclusions in relation to the 1st and 2nd Defendants, I next considered whether or not to grant an adjournment. I concluded that no other course was fair or sensible – in particular as insufficient time was available to carry on anyway, and a date in March 2018 was available.[90]I rejected Mr Goldberg’s suggestion of continuing in relation to the 3rd Defendant alone. Whilst it was convenient for Judge Walden-Smith to deal with the applications for permission in two separate hearings, and although the Grounds are individual, it was in my view self-evident (given the interconnections between them) that it was overwhelmingly in the interests of justice that all the Defendants and all the Grounds be tried in one Final Hearing. The more so as a date in March was available.[91]Finally, I concluded that it was self-evident that the fairest course as to costs was to order that they be reserved.

Cited in 1 later judgment