Daniel Scognamiglio examines the Liverpool Victoria Insurance Co Limited v Zafar [2019] EWCA Civ 392 case, which serves as an important reminder to all witnesses as to making false or exaggerated statements.
The Court of Appeal recently considered the consequences for any person where they had made a deliberate or reckless statement in a document used by the court and verified by a statement of truth. That consequence would usually be immediate committal to prison. This would almost certainly be the case where it was an expert who had made a false statement recklessly or deliberately.
The Facts of the case
The judgement refers to Dr Asef Zafa producing some 5,000 reports annually, each taking 15 minutes to complete. The taxi driver claimant suffered an injury but did not consider that the report provided by Dr Zafar accurately reflected his injuries. An email was sent by the claimant's solicitor to Dr Zafar asking for the report to be amended in light of the notes retained by Dr Zafar. The report was amended. However there was no further examination of the claimant and the expert had no significant notes pertaining to the original examination. The amended report differed substantially to the original. There was nothing within this amended report to suggest that there had been an earlier report. The amended report was disclosed. The matter went to trial. The issue came to light when the original un-amended report was inadvertently included in the trial bundle by the claimant's solicitor.
The trial judge gave some directions as a result, and that included the expert Dr Zafar to provide a statement. Dr Zafar's statement said that the un-amended report was the correct version and that the amended version had been made without his permission. Dr Zafar later said that he ought not to have made that statement as he had amended the report. Contempt proceedings were commenced by the insurer involved in the personal injury claim against both the solicitor and Dr Zafar.
The personal injury solicitor instructing Dr Zafar had been sent to prison for 15 months for lying in witness statements and forging a client's signature. A six month prison sentence suspended for two years was imposed on Dr Asef Zafar who was found to be in contempt of court for having provided a false statement. It seems that the insurers were not satisfied that the expert was treated leniently when the solicitor was in jail. The insurer successfully appealed the decision as to the committal of the expert to jail for contempt.
When considering Dr Zafar's suspended sentence the Court of Appeal considered it wrong and too lenient in two respects. The Court of Appeal considered that six months was too short and secondly that the sentence should be served immediately. There was no powerful factor suspending it.
Dr Asef Zafar appears to have been rather fortunate as the Court of Appeal did not impose the more sever sentence. They considered that they were providing guidance that had not previously been available to those sentencing for contempt of court.
The judgement goes on to provide some helpful guidance as to sentencing in committal for contempt.
The important points of the judgment for claimants, witnesses and experts.
The deliberate or reckless making of a false statement in a document verified by a statement of truth would usually be so inherently serious that nothing short of an order for committal to prison would be sufficient.
The Court made specific reference to contempt of court where a claimant sought to support a spurious or exaggerated claim, a lay witness seeking to provide evidence in support of such a claim, or an expert witness putting forward an opinion without an honest belief in its truth.
Where it was an expert making the false statement, the fact that he or she was acting corruptly and made the relevant false statement for reward would make the case even more serious. It would be a serious contempt of court even if the expert witness acted from an indirect financial motive – the court gave examples such as a desire to obtain more work from a particular solicitor. It would still be a serious contempt if there was no financial motivation.
Experts owe an overriding duty to the court that supersedes their duty to whoever is instructing them. Contempt by an expert undermines the administration of justice. It would therefore always be serious. It did not matter that the deliberate of reckless false statement was identified at an early stage and it did not matter that the deliberate or reckless false statement did not affect the outcome of the litigation.
There is a great deal of trust placed on a witness. Putting forward a false statement, not caring about the truth, was usually almost as serious a contempt as telling a deliberate lie.
The culpability of the witness who acted recklessly would be increased if they knew of the circumstances that cast doubt on the statement but nonetheless made it without caring whether it was true or false.
The court will also consider the extent to which the witness persisted in the false statement and/ or resorted to other forms of misconduct. On this occasion the expert had recklessly made a number of false statements in an amended medical report, tried to cover up what he had done by telling a direct lie in a witness statement and then recklessly made false statements in advancing a different explanation in a later statement. The court considered that this significantly increased his culpability.
The court could consider the previous good character, an unblemished professional record and the fact that an expert witness had suffered professional and financial ruin in mitigation of the sentence. Due weight to the impact of committal should also be considered – for example where the witness was the sole or principal carer of children and that may be a compelling reason to suspend the committal. However the court also needed to keep in mind that it was the good character that enabled the witness to act as an expert. The trust placed on an expert had been breached and severe sanctions should be expected in addition to any other consequences, for example from the expert's regulator.
This case shows how important it is for any witness to understand the importance of signing the statement of truth. If a false statement was signed recklessly or deliberately, it seems that whoever gave that statement may be faced with committal proceedings for being in contempt of court.
