AIG Europe Ltd v Parmar [2016] EWHC B23 (QB) (23 August 2016)

HTML VERSION OF JUDGMENT ____________________ Crown Copyright © JUDGMENT HIS HONOUR JUDGE ROBERT OWEN QC: This is an application made on 24 th March 2016 by the claimant, AIG Europe Limited, pursuant to CPR Rules 81.14(1), 81.17(1)(a) and 81.18(3)(a), that is a committal application in relation to a false statement of truth made or caused to be made by the respondent, Mr Bernard Parmar, in connection with proceedings brought by him in the Walsall County Court. By CPR Rule 32.14(1) proceedings for contempt may be brought against a person who makes or causes to be made a false statement in a document verified by a statement of truth without an honest belief in its truth. Such conduct, if proved or admitted, constitutes an interference with the due administration of justice. Pursuant to section 6 of CPR 81, contempt of court, and its provisions to which I have referred, a committal application may only be made with the permission of a single judge of the High Court. It is in that capacity that these proceedings are now before me. By notice dated 17 th June 2016, the parties were informed that the application would be heard today, 23 rd August 2016. By letter dated 18 th August 2016, the respondent's solicitors informed the claimant and the court that the respondent did not contest the application for permission to bring contempt proceedings, nor did he challenge the evidence filed on behalf of the claimant in support of their application notice to establish the contempts complained of, namely the affidavit and exhibits thereto of Blanche Sarah Richards, sworn 18 th March 2016, and nor did he require the attendance at the hearing of the claimant's witnesses and in particular the consulting engineer, Mr Wheeler, for cross-examination. It was acknowledged in that letter that whilst a formal admission of the contempt was not made and that permission and findings of contempt were a matter for the court, the respondent appreciated that the contempt complained of would be established, that the standard of proof required, that is the criminal standard, would be met, and that the submissions of counsel at the hearing would be confined to questions relating to sentence or disposal. No written evidence was filed by the respondent. In the course of his submissions, Mr Singleton, for the respondent, handed up to the court a letter dated 22 nd August 2016, apparently from the social worker of the adult safeguarding team at Oldbury, Mr Aaron Semper in the form of a character reference and also the remains of a letter, which appears to be dated August 2016 and addressed to the respondent from the Heart of England NHS Foundation Trust informing him of an appointment with the consultant in trauma and orthopaedics on Tuesday, 30 th August 2016, which Mr Singleton explained related to problems with a knee injury whilst playing football in 2014. It is in these circumstances that Mr Clegg on behalf of the claimant was able to open the application succinctly and Mr Singleton made short and focused submissions on behalf of the respondent. Again, whilst it was acknowledged that these are matters for the court, Mr Singleton acknowledged that the proven contempts had or appeared to have crossed the custody threshold. He submitted that any custodial sentence should not exceed twelve months imprisonment and he argued that the appropriate range could be between six and nine months and, he submitted, the court might properly suspend any such sentence in all the circumstances. Having read the hearing bundle prior to this hearing, I was able to inform counsel that I had formed a provisional view and, subject to submissions, that the evidence filed demonstrated a clear, strong, prima facie case. It appeared to be in the public interest to grant permission. Having produced the solicitor's letter referred to and upon hearing counsels' submissions permission was formally granted. I was satisfied that permission should be granted and that it was appropriate to find independently on the evidence, supported by the admissions made on behalf of the respondent, that the issue before the court was indeed one of sentence or disposal. The evidence relied upon by the claimant, all of which was unchallenged, demonstrated beyond any reasonable doubt that the respondent had made or caused to be made six separate false statements of truth. That is in the following documents in connection with the claim for damages for alleged personal injury and financial loss, which it was alleged have been caused by reason of a road traffic accident, which it is alleged had taken place on 26 th September 2012. Following the filing of a standard claim notification form dated 29 th October 2012 in respect of that alleged accident involving a so-called soft tissue whiplash-type injury, the respondent first caused to be issued a claim form in claim number 3YS59261 in which he claimed up to £15,000 in respect of that alleged road traffic accident. That claim form was issued on 5 th November 2013. The road traffic accident insurers concerned, that is the claimants in these proceedings, AIG, applied to be joined to the proceedings as second defendants in addition to the named first defendant, Mr Thomas Henry, the alleged driver of the other vehicle allegedly involved in the accident, on the basis that the claim was a fraudulent claim. It is common ground that the respondent caused the false statement of truth to be completed by his legal adviser on that claim form. Secondly, he made a false statement of truth on the particulars of claim dated 26 th October 2013, in which he alleged at paragraph 1.1(a) and 2: (1) "The claimant was the driver of a Jaguar vehicle and the defendant, Henry, was the driver of a Vauxhall Corsa vehicle. (2) On 26 th September 2012, a collision occurred between the Vauxhall and the Jaguar on Newton Road, Great Barr, A4041, at or near to the junction with Wigmore Lane. (3) The claimant [that is the present respondent] was proceeding directly in a north-easterly direction on Newton Road when the first defendant emerged from Wigmore Lane on the claimant's left-hand side. The first defendant drove the Vauxhall directly into the claimant's path causing a collision. Paragraph 4 then alleged that the collision was caused by the negligence of Henry and the standard allegations of negligent driving were set out. Paragraph 5 asserted that by reason of that negligent driving, he, the respondent, had sustained injury, loss and damage, as set out in the medico-legal reports of Dr Pryer dated 27th November 2012 and 25th September 2013. Alleged particulars of loss and damage were set out in the attached schedule of special damages. Thirdly, that the respondent caused a false statement of truth to be made in respect of that schedule of special damages dated 28th October 2013, signed by his legal adviser, claiming the sum of £3,607.09, comprising, in particular, hire charges and recovery and storage charges. The remaining documents are the fourth, fifth and sixth acknowledged acts of fraudulent or false misconduct in this context, which relate to the witness statements signed and dated by the respondent dated 3rd June 2014, 2nd September 2014, and (a second statement) dated 2 nd September. The first statement dated 2nd September 2014 contains nine pages of utterly false detail. The circumstances of the alleged accident are set out at paragraph 10 onwards. It is unnecessary for present purposes for me to recite those assertions contained within this statement but I incorporate by reference paragraphs 10 through to 17 and, in relation to the consequential injuries and financial losses, from paragraph 22 through to the end of that statement. In connection with those proceedings, the respondent had attended for examination for medico-legal purposes on 25th November 2012, a Dr Pryer, who elicited, it seems in accordance with this kind of claim, without any form of basic or critical scrutiny, the respondent's history of the alleged accident and consequences. A diagnosis consistent with that unchallenged history was then given again, it appears for this kind of claim, in the usual way. Of course, this report had no evidential or probative value in support of the claim for it was and could have been only as good as the history elicited (assumed to be true by the doctor). Whether the history was reliable was ultimately a question of fact for the trial judge. I mention this merely to indicate the apparent significance of the reliability of the history of a claimant in this kind of claim placed by all those involved in the purported investigation and presentation of these claims. The trial of the respondent's claim was listed for hearing on 14th and 15th July 2015 and was heard by His Honour Judge Gregory at the County Court, Walsall. Following cross-examination of the respondent and his two supporting witnesses, alleged to have been passengers in the Jaguar at the time of the alleged accident, the claimant did not attend for the second day of the trial and his counsel and solicitors withdrew for want of instructions. The learned judge completed the trial and delivered his judgment. The circumstances of the alleged accident were recounted and the inconsistencies in the evidence of the claimant and his two witnesses identified and indeed there was some consideration given to the unchallenged report of Mr Wheeler. In short, the learned judge noted the alleged very extensive damage to the Vauxhall to be compared to the apparently minimal damage to the Jaguar and also and in particular the suggestion within the claimant's case that the collision was such as to have caused the steering wheel of the other vehicle to have been forcefully sheared off or disconnected was understandably described by the learned judge as 'ludicrous'. Within his judgment, the learned judge said the following, which suffices for present purposes,: paragraph 16: "The outcome of this case will plainly depend upon the assessment that I make of the defendant and his witnesses. If I were to be satisfied on the balance of probabilities that he was truthful then the claim should succeed. On the other hand, if I consider that he has lied about the occurrence of the accident and that the claim is fraudulent, then of course it will fail. In that regard, the burden of proof rests upon the second defendant and the standard of proof is the balance of probabilities. However, given the gravity of the allegation against the claimant, the evidence in support of the second defendant would have to be suitably cogent and compelling". Finally, the learned judge concluded at paragraph 39 and 40 as follows: " [39]: This is a man [that is the respondent] who repeatedly avoided the questions that he was asked, repeatedly obfuscated, repeatedly paused to give himself time to think of answers to the questions and when all else failed simply fell back on saying he could not remember. He was a patently and persistently dishonest witness. His evidence is therefore wholly unworthy of belief. I am also satisfied that in associating themselves with this claim, the two witnesses who gave evidence have also lied in support of it. All that can be said of the third claimant, Mr [Ball?] , is at least he has not turned up to court to lie. Nor was any witness statement containing lies ever taken from him. Fourthly, the unchallenged, as it now is, and incontrovertible evidence of Mr Wheeler was that these cars were never involved in a collision with one another. I unhesitatingly accept that evidence. In those circumstances I unhesitatingly have come to the view that this is indeed a fraudulent claim. The manner in which it has been pursued must mean that there has been a conspiracy to pervert the course of justice to which the claimant and his witnesses, Tyrone Carter, and Nathanial Derby, have all been parties". The learned judge dismissed the claim. He gave judgment on the counterclaim in respect of the sum of £6,000 or so, which had been paid out by the second defendants in relation to the claimed pre-accident value of the Jaguar. I was informed that that judgment on the counterclaim remains unpaid. It is in these circumstances and following my independent review of the evidence and indeed the unchallenged evidence before this court, the learned judge's findings and the admissions made before this court, that the acts of contempt complained of, severally and cumulatively, have been established beyond any reasonable doubt. Counsel were agreed on the general judicial guidance available in the circumstances of an application of this kind. It is unnecessary for me to refer to each of the decisions contained within the hearing bundle, save to refer briefly to the following three decisions. First, South Wales Fire and Rescue Service v Smith [2011] EWHC 1749 (Admin) , a decision of Lord Justice Moses and Mrs Justice Dobbs. Both counsel referred to this decision as providing a helpful summary of the significance of this kind of conduct and its effect upon the due administration of justice. Thus, Lord Justice Moses stated in relation to that committal application at paragraphs 2 to 7 as follows: "[2] For many years, the courts have sought to underline how serious false and lying claims are to the administration of justice. False claims undermine a system whereby those who are injured as a result of the fault of their employer or a defendant can receive just compensation. [3] They undermine that system in a number of serious ways. They impose upon those liable for such claims the burden of analysis, the burden of searching out those claims which are justified and those claims which are unjustified. They impose a burden upon honest claimants and honest claims when in response to those claims, understandably those who are liable are required to discern those which are deserving and those which are not. [4] Quite apart from that effect on those involved in such litigation is the effect upon the court. Our system of adversarial justice depends upon openness, upon transparency and above all upon honesty. The system is seriously damaged by lying claims. It is in those circumstances that the courts have on numerous occasions sought to emphasise how serious it is for someone to make a false claim either in relation to liability or in relation to claims for compensation as a result of liability. [5] Those who make such false claims in court should expect to go to prison. There is no other way to underline the gravity of the conduct. There is no other way to deter those who may be tempted to make such claims and there is no other way to improve the administration of justice. [6] 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 attempting to behave in that way, of both themselves and their families, are likely to be ruined. [7] But the prevalence of such temptation and of those who succumb to that temptation is such that nothing else but such severe condemnation is likely to suffice". All of those observations and propositions apply of course in full measure to this kind of committal application and in particular to this committal application. The parties also referred to the decision of His Honour Judge Collender QC in Royal & Sun Alliance Insurance plc v Maharouf Fahad [ ] EWHC 1092 QB . In that case, the learned judge was concerned with an alleged road traffic accident which was, as the judge at first instance found, 'entirely contrived'. It was in those circumstances that the learned judge concluded that the appropriate sentence was one of twelve months imprisonment. It is important to acknowledge, of course, that each case depends upon its own facts. That sentence was at least in keeping with observations and judicial guidance contained in Liverpool Victoria Insurance Company v Bashir & Ors [ ] EWHC 895 (Admin) where there the President drew a distinction or difference in seriousness of contempt between those cases, notably road traffic accident cases, where the claim was in fact based on exaggeration arising out of an accident and those claims which were in fact founded on a fictitious or non-existent accident. The latter kind of contempt was considered perhaps to be the more serious of the two. It was in the context of that case that some guidance was offered by the court, namely that in such a case the court would well be starting with a period of imprisonment of,(that is, if not indeed in excess of, twelve months. It was in light of those circumstances and facts and admissions made by and on behalf of the respondents that Mr Singleton focused his helpful and short submissions. He submitted that where there has been some delay between the date of the initial fraud, that is the lodging of the claim and these proceedings and hearing date the court could in the circumstances at least identify a proper basis to suspend an otherwise, as was conceded realistically, inevitable custodial sentence. It was further submitted that the respondent, in adopting, albeit a little late, his present co-operative approach, has spared the claimant from having to re-prove the case formally and that credit should be given to the respondent in these circumstances for not requiring witnesses to attend and in particular, for example, Mr Wheeler. I was unable to place substantial weight on those submissions given the clear evidence in this case. However, I do accept that some credit may be given for the admissions made before this court. Mr Singleton emphasised the personal and family circumstances of the respondent which of course I do. I was invited to take into account the observations of Mr Semper in his letter and the state of the claimant's current health as described only in submissions. As indicated earlier, the respondent evidently elected not to file any written evidence. Mr Singleton drew attention also to the impact which imprisonment would have upon the respondent, a family man, who was devoted to his three children, and who had been supported at the hearing by his partner. Looking at the matter in the round it was submitted that the court could conceivably suspend a sentence of imprisonment, which as I have said, Mr Singleton realistically and properly acknowledged was otherwise inevitable. I have taken into account each of those matters in coming to my decision upon the proper and correct sentence which should be imposed in relation to these proven contempts. It is in that context that I now proceed to sentence the respondent, Mr Bernard Parmar. Mr Parmar, could you stand up, please? You appear before me in proceedings brought against you for contempt of court. On your own admission, you have made a wholly false claim for damages with which you persisted throughout the trial process up to and including attending the trial and giving oral testimony on oath on 14 th July 2015. The evidence which you gave in support of your claim in the claim form, the particulars of claim, the medicolegal report, but in particular for present purposes the witness statements, were to your knowledge wholly false and groundless. You knew that if the court were to accept your evidence, a serious fraud with serious interference with the due administration of justice would occur. You were determined to achieve your objective and the resulting financial gain which you hoped to receive of up to but not exceeding £15,000, until having given your evidence to the best of your endeavours, you realised that the game was probably up and so it proved to be. This was a carefully planned fraud involving the third party driver, Henry, and your, at least, two accomplices. You obtained an interim payment to meet the pre-accident value of your vehicle. You presented yourself for medico-legal purposes. You attended the trial to see your fraud through. You were determined to attempt to deceive the trial judge and to undermine the legal process. This is not and would not have been a victimless crime for such unlawful conduct. The reality is that had you succeeded innocent persons would end up being adversely affected financially. Not only that, by having to pay higher premiums the insurers themselves have suffered a significant financial outlay which they have been unable to recover and which doubtless in due course may in part be passed on to ordinary law abiding motorists. It is well understood by the public and people like you who decide knowingly to attempt to defraud and undermine the legal system that those who undertake this behaviour may expect a sentence of imprisonment. I have considered whether the inevitable sentence of imprisonment might properly be suspended for the reasons urged upon me by your counsel, not least the fact that the initial fraud was initiated some nearly four years ago and that your family may be unintentionally harmed by your behaviour. They are of course wholly innocent. All of that said, as has been made clear in the judicial guidance to which I have referred and the propositions which apply, those matters are your responsibility and no others. I have considered in the circumstances whether for the good administration of justice and in the public interest a sentence of imprisonment is necessary. I am satisfied that it is. I have considered whether an alternative form of sanction could be justified. On the facts of this case it simply could not. I direct myself in light of the findings which I have made, beyond reasonable doubt, that the sentence of imprisonment should not be a day longer than that which is necessary and proportionate to the conduct proved or otherwise admitted. I do not consider it necessary or appropriate to impose a sentence of imprisonment longer than twelve months. I am satisfied that the appropriate sentence concurrently for each of the six acts of contempt is one of twelve months' immediate imprisonment. That means that you will be detained and that you will serve at least six months of that term, subject to your good behavior. Thereafter you may well be released on licence. [Discussion re costs follows] BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII