My blog on the decision of Ritchie J in the case of Cojanu considered the approach taken by the Court when a Defendant advances a defence of fundamental dishonesty. This blog summarises the position when a Defendant submits an application to commit a Claimant’s Litigation Friend for contempt of Court for false statements made in a document verified by a statement of truth.
Megan Colley (the Claimant in a clinical negligence claim assisted by her Mother and Litigation Friend, Natasha Colley) was born with severe acetabular dysplasia, a disorder of the hip joints. She alleged that with appropriate treatment she would have had normal hip function and the need for surgical joint reconstruction would have been delayed to age 50 or 60 with good mobility preserved until her 80s.
During the course of the clinical negligence case, the Defendant disclosed the report of its expert orthopaedic surgeon. The expert expressed some doubt about the Claimant’s symptoms which were “not easily explained on an anatomical basis”. The Defendant investigated Megan’s social media postings and formed the view that they did not support the impression given in Megan’s evidence. The Defendant obtained covert surveillance evidence which, with the social media material, was disclosed in September 2018. The Defendant amended its case to allege fundamental dishonesty in the presentation of Megan’s claim where a misleading impression of Megan’s functional capacity and an exaggeration of her disability had been given.
Subject to the fundamental dishonesty defence, the Defendant admitted liability for damages of approximately £65,500. The clinical negligence claim was listed for trial in October 2018. The trial was adjourned because an expert was unavailable and relisted to start on 5 March 2020.
Meanwhile, in August 2019 Megan’s claim was amended and valued at £5.4 million (reduced from an initial valuation of £7.3 million). However, eight working days before trial, a Notice of Discontinuance was served on Megan’s behalf. No explanation was provided, save that this step had been taken against legal advice. As Megan was in receipt of legal aid, the discontinuance prevented the issue of fundamental dishonesty from being determined by the Court.
Instead, the Defendant pursued committal proceedings against Mrs Colley and asserted that the essence of the alleged false statement was to exaggerate Megan’s disability and immobility arising from her hip dysplasia. The Defendant claimed the surveillance video evidence showed that Megan had “grossly normal” mobility in terms of walking, using stairs, and accessing public transport. Statements from teachers at Megan’s school and college indicated that they were unaware of any special arrangements for Megan.
Mrs Colley stood by her statements. She claimed that Megan achieved the mobility seen in the video evidence by increased use of painkillers and that she had bad days as well as good days.
The application to commit Mrs Colley for contempt of Court on grounds of making knowingly false statements was heard by Mr Justice Bourne. Upon hearing live evidence from various witnesses (including Megan’s school and college teachers), Bourne J concluded “When all the evidence in the clinical negligence claim is considered, it is absolutely clear that Megan, by herself and with the help of Mrs Colley significantly exaggerated the levels of disability which she was experiencing during the lifetime of the litigation.”
This exaggeration consisted of statements that Megan “attends college in her wheelchair, has a full-time teaching assistant who pushes the wheelchair” and “is currently reliant upon the use of a wheelchair when out of the house”. Bourne J held these statements to be false and “That Mrs Colley knew that they were false when she made them. I am sure that they were knowingly made with a view to increasing the value of Megan’s clinical negligence claim and, to the knowledge of Mrs Colley, they thereby interfered with or if persisted in would have interfered with the course of justice in a material respect”.
Mrs Colley was found guilty of contempt of Court by knowingly making false statements supported by a statement of truth.
Upon considering the appropriate penalty Bourne J had in mind the guidance of Moses LJ in South Wales Fire and Rescue Service -v- Smith . That guidance included the following warning: “The public and advisors must be aware that, however easy it is to make false claims, either in relation to liability or in relation to compensation, if found out the consequences for those tempted to do so will be disastrous. They are almost inevitably in the future going to lead to sentences of imprisonment, which will have the knock-on effect that the lives of those tempted to behave in that way, of both themselves and their families are likely to be ruined.”
With this in mind Bourne J identified four questions he was required to answer: (1) whether the contempt is serious that a fine alone cannot be justified, having regarding to harm and culpability; (2) whether a prison sentence is unavoidable; (3) what is the shortest term commensurate with the seriousness of the contempt; and (4) if there is to be a prison sentence, whether it can be suspended.
In answering these questions Bourne J held:
- In respect of questions (1) and (2), the Courts have repeatedly said that deception of this kind should normally lead to a prison sentence. This case was serious and sustained and potentially involved substantial sums. He noted “the deception gave material support to a potential increase in the claim’s value which would have been well into six figures”. Mrs Colley resisted the contempt application and therefore admitted no deception and made no apology. A fine alone could not be justified and a custodial sentence was inevitable.
- As for question (3), the shortest possible sentence would be a sentence of 6 months and Mrs Colley would be entitled to be released after serving half of that term. The judge noted “A term of that length would be necessary, in my judgment, to mark the seriousness of an attempt of this kind and of its magnitude to deceive the Court.”
- Finally, question (4), the personal circumstances of Mrs Colley were considered by Bourne J. He concluded his Judgment stating “Mrs Colley of course made a disastrous decision to try to help Megan by exaggerating her claim. The background does not excuse that tragic mistake but it helps me to understand it. It also seems to be inevitable that custody would have a significant harmful impact on all of the family and especially her son. Meanwhile, I accept that these proceedings, over a long period, have already had a severe impact on Mrs Colley. The lack of any admissions is profoundly regrettable, and places her at real risk of an immediate prison term, but there is some reason to believe that she will have learned her lesson, in other words, a real prospect of rehabilitation.”
Bourne J sentenced Mrs Colley to imprisonment for 6 months, suspended for 2 years on condition that no other contempt of Court is committed during that time. In passing this sentence he stated “I hope Mrs Colley understands the exceptional nature of this decision to suspend.”
This case is a good example of how serious the Court takes allegations that parties to litigation knowingly make false statements in a document verified by a statement of truth. Defendants are attuned to potential exaggeration of claims and it is clear in this case the Defendant’s expert was at a loss to reconcile the anatomical nature of the Claimant’s injury and the description of her level of mobility.
This Judgment is a reminder to those involved in clinical negligence and personal injury litigation of the importance to verify a witness’s account. A detailed review of disclosure (including social media content and third party disclosure) should be taken throughout the life of the case.
Furthermore, warnings should be given to clients, Litigation Friends and witnesses of the consequences of providing false statements in a document verified by a statement of truth. Colley is not a one off example; this is part of a growing body of case law dealing with fundamental dishonesty and it will certainly not be the last word the Court will have on this subject.
If you would like any further information or advice about the topic discussed in this blog, please contact Richard Lodge or our Medical Negligence and Personal Injury team.
ABOUT THE AUTHOR
Richard Lodge is a Partner in the Medical Negligence and Personal Injury practice and has been recognised within the field of clinical/medical negligence within the Chambers UK and Legal 500 directories. He is an individually ranked lawyer for clinical negligence within Chambers UK, A Client’s Guide to the UK Legal Profession.