Aviva Insurance Ltd v Ahmed [2018] EWHC 423 (QB) (29 January 2018)

Neutral Citation Number: [2018] EWHC 423 (QB) No. ATC17/0431 Royal Courts of Justice Strand London, WC2A 2LL 29th January 2018 B e f o r e : MR JUSTICE SPENCER ____________________ AVIVA INSURANCE LIMITED Claimant - and - RASHID AHMED Defendant ____________________ Transcribed by Opus 2 International Ltd. (Incorporating Beverley F. Nunnery & Co.) Official Court Reporters and Audio Transcribers 5 New Street Square, London EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 civil@opus2.digital This transcript has been approved by the Judge ____________________ MS J. LUCK (instructed by DAC Beachcroft LLP) appeared on behalf of the Claimant. MR P VINCENT (instructed by the Citizens Advice Bureau, RCJ) appeared on behalf of the Defendant. ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. MR JUSTICE SPENCER: On 21 st November 2017, I heard and determined an application by Aviva Insurance Ltd ("the Insurers") to commit Mr Ahmed to prison for contempt of court in relation to his making of a fraudulent claim in the County Court for personal injuries alleging he had been the victim of a genuine road traffic accident when he had, in fact, deliberately caused the collision in order to make a fraudulent claim. Mr Ahmed did not attend the hearing, I was satisfied on all the evidence that he had been duly served with the proceedings in accordance with the order for postal service that had been made by the Master some months earlier. I found the contempt proved and ordered his committal to prison for nine months. The warrant of committal was executed on or about 13 th December 2017 and Mr Ahmed has been in custody since that date serving his sentence. On 22 nd January 2018, I was made aware of a letter Mr Ahmed had written to me asserting that he had been unaware of the hearing on 21 st November and asserting that he was an innocent victim in this matter and that it had been a genuine road traffic accident. He asked that I look at the case again. Accordingly, I arranged that the case be re-listed before me today, 29 th January, which was the earliest date that could be found. I do not propose to recite the history of the case which is set out in my previous judgment, [2017] EWHC 3276 (QB) . Very briefly, Mr Ahmed's address at the time of the collision when he began the proceedings was given as 107 Highbury Road, Luton. In due course, an order was obtained that his address for service should be recorded as 105 rather than 107 Highbury Road, Luton, that being the latest confirmed linked address identified by the insurers. On the material I have now seen, that was also consistent with what the electoral role showed. As I have said, Mr Ahmed maintains in the letter he wrote to me and still maintains that he did not in fact receive any of the documentation which was served upon him at 105 Highbury Road. He maintains that for some time he had been living at his girlfriend's address in Redbourn in Hertfordshire which is some eight miles from Luton. Equally important, as I have already explained, he was asserting in his letter to me that he was an innocent victim; the collision was a genuine accident caused by the dangerous driving of the other driver, Mr Taylor, who drove into the rear of Mr Ahmed's car when Mr Ahmed braked sharply. Today, Mr Ahmed has been produced from prison. The court is extremely grateful to the Citizens Advice Bureau based here at the Royal Courts of Justice through whom Mr Vincent of counsel has been instructed. Mr Ahmed should be extremely grateful to Mr Vincent for the sound advice he has given him. I adjourned the matter this morning, when Mr Vincent had been instructed, to enable him to confer with Mr Ahmed sufficiently It is also right that the court should record its gratitude to the solicitors for the insurers and, indeed, to Ms Luck, counsel who appears today for the insurers, for the assistance they have afforded to Mr Vincent in acquainting him with the precise circumstances of the case and providing him with bundles of documents. In particular, Mr Vincent and Mr Ahmed benefited from being able to watch the CCTV footage of the few seconds before and after the collision. From that footage it is crystal clear, as I explained in my judgment that, contrary to what Mr Ahmed was saying in his claim and in his witness statement supported by a statement of truth, this was not an accident at all but was a deliberate collision contrived by Mr Ahmed's jamming on his brakes and coming to a complete halt before the car behind him ran into him. As I emphasised in my judgment, not only was it a thoroughly dishonest claim but, by behaving in that way, he was seriously endangering the safety of other road users which aggravates the underlying criminality of the fraudulent claim. When the case was called back on this afternoon, Mr Vincent explained to me that Mr Ahmed now acknowledged his contempt and wished to apply to purge his contempt. There has been no written application made pursuant to the requirements of CPR 81.3(1). However, I indicated that I was prepared to waive that formality bearing in mind the circumstances in which the application to purge his contempt had arisen at court today and in the face of the court. Following a further adjournment this afternoon, Mr Vincent took instructions and prepared a statement, which I shall read, signed by Mr Ahmed, setting out the application to purge his contempt: "1. This is the statement of Rashid Ahmed in my own words. 2. I am making this statement to purge my contempt. 3. I now understand what contempt of court means and that when I signed the documents saying that this accident was caused by someone else, which was not true, that was a contempt of court. 4. I did not realise at the time that it was a crime, I knew it was dishonest and wrong, but I did not realise the consequences. I know that is no excuse. 5. I had heard about causing deliberate accidents in the media and stupidly did this to get some money. I was living with my family and only working part-time. I needed to contribute to my household. 6. I have never done anything like this before, I hadn't planned it, it was a stupid idea that I thought would not really hurt anybody. I know that the other driver was injured and I'm genuinely sorry about that. I did not expect that to happen. 7. I genuinely didn't receive any of the letters telling me about the hearing. I've been living with my girlfriend since about March 2017 and before that living at 107 Highbury Road. I had a job and a life and if I had known about a court case, I would have turned up and tried to get a lawyer. 8. I am genuine in my apology to the court and the other driver, Mr Taylor. I know I used them to get money and did not really get how bad that was and how it must have been for Mr Taylor. I know that doing something like this is basically like stealing. 9. I've been in prison for seven weeks, it's the worse experience of my life by far and it has taken such a bad experience to make me realise that this is a much worse thing to do than I thought. 10. I was in trouble a bit when I was sixteen for taking cars but other than that, I have no criminal record at all and I am thirty-three now. I have a job I can go back to, I can genuinely tell the court that I would never, ever do anything again that put me at risk of going to prison. 11. I don't know how else to get across how much I regret what I did but I really am sorry." Mr Vincent submits that, albeit very late in the day, this does amount to a genuine apology by Mr Ahmed for his contempt of court and that it would be appropriate for the court to reduce the term of the sentence which was imposed on 21 st November. I made it clear to Mr Vincent and to Mr Ahmed at the outset of his submissions that this is not a case where the court would conceivably contemplate an immediate discharge. However, I suggested that the situation might be said to equate to very belated mitigation of a guilty plea, mitigation which, had it been presented at the hearing on 21 st November, might have resulted in a reduction in the term of nine months. Mr Vincent made it clear in his submissions that on the material before the court on 21 st November, including the absence of any acknowledgment of the contempt or apology for it, the sentence of nine months was just and proportionate. I set out in my judgment my reasoning for arriving at that figure in the light of a number of authorities which were cited. Mr Vincent submits that the experience of serving a number of weeks in prison has had a very marked effect upon Mr Ahmed. He submits that it is difficult to get across to the court how genuine someone's remorse is in such circumstances. Mr Vincent submits, in my view correctly, that it is often only the experience of custody which will bring home to someone who indulges in dishonesty of this kind just how serious that conduct is. I have been addressed by Mr Vincent and by Ms Luck on behalf of the insurers on the basis of one authority in particular, which helpfully is cited in the notes in The White Book 2017 at para.81.31.4, that is the decision of Court of Appeal in Swindon Borough Council v Webb [2016] EWCA Civ.152, [2016] 1 WLR 3301 . That case differed from this in that there was an application by a contemnor, produced at court from prison, in circumstances where the applicant who had secured his committal was not even made aware of the fact that the contemnor was to be produced. On that occasion, almost at the invitation of the judge, the contemnor in effect said the right things and secured his immediate discharge. The claimant appealed as a matter of principle and the Court of Appeal gave some guidance on the approach which should be taken in cases of this sort. Without lengthy citation from the judgment in that case, of particular significance is a passage at para.35 which in turn quotes from the judgment of Wilson LJ in an earlier case, CJ v Flintshire Borough Council [2010] EWCA Civ 393 . At para.21 of Wilson LJ's judgment in that case, a number of questions were suggested which it might be appropriate for a judge to consider when confronted with an application for early discharge in similar circumstances. It seems to me that of those eight questions, three are particularly pertinent here: (i) Can the court conclude, in all the circumstances as they now are, that the contemnor has suffered punishment proportionate to his contempt? (ii) Would the interest of the State in upholding the rule of law be significantly prejudiced by early discharge? (iii) How genuine is the contemnor's expression of contrition? Also pertinent is a further quotation from the judgment of the Court of Appeal in the Flintshire case, this time from the judgment of Aikens LJ at para.28: "To my mind, the court has to consider two broad issues. First, despite the fact that the contemnor has not served the term originally imposed…has the contemnor demonstrated that he has now received sufficient punishment for his breach of the court's injunction? In this regard, the court will examine, at the least, whether the contemnor now not only accepts that he has been guilty of his contempt, but also that he is genuinely sorry for his misdeeds and repents them." Ms Luck also draws my attention to a further quotation in the judgment of Wilson LJ in that case from a Scottish case in the Court of Session where Lord Clyde, the Lord President said this: "The mere circumstance that he presents a belated expression of contrition has, with regard to the public aspect of the matter, almost no importance at all. There is ample opportunity…for repentance before sentence is pronounced. The appeal is simply to the clemency of the court…and the idea must not be harboured that a person who has wilfully committed a breach of interdict can obtain remission of sentence by coming to the court and saying, 'I realise my transgression and apologise for it', however sincerely such an apology may be made." Ms Luck submits that the court should be very slow to accept as genuine the apology which Mr Ahmed has tendered in the document I have read. As Ms Luck put it, it is "too little too late". She says that in the vernacular, Mr Ahmed has given the insurers the run-around for the last two years; they have had to incur very considerable expense, some £10,000 is the sum currently owing, if not more, and there is no justification for the court departing from the level of sentence which was considered appropriate when sentence was passed, namely, nine months' imprisonment. I have considered all these competing submissions carefully. I do not propose to come to a concluded view as to whether Mr Ahmed had or had not received any of the documentation relating to the claim at any stage over the last few months. Suffice it to say that his letter to me included a deliberate lie in still suggesting that it was a genuine accident, so I am reluctant to accept at face value anything he says about other matters. In any event, it seems to me it does not matter now. He is here and he has accepted his responsibility for the contempt. The way I propose to approach the matter is this. I accept that Mr Ahmed came to court today not expecting for one moment to do what he has done, which is, with a degree of courage, to face up to responsibility for his actions and to accept that he did set out to commit a fraud. I fully understand the submission of Ms Luck and the view of the insurers, no doubt, that this is a colourable apology on the part of Mr Ahmed when he realised, having seen the CCTV footage, that there was no possible way he could escape from liability. However, I am prepared to accept that, albeit the eleventh hour, Mr Ahmed does now genuinely feel sorry for what he has done. He has expressed his contrition. It is right, as Ms Luck says, that he has not apologised in terms to the insurers, but he has made it clear enough, in my judgment, that he apologises for the contempt which has been committed. In those circumstances, it seems to me appropriate that I should consider what reduction might have been made for the mitigation of a guilty plea. It is true that he did not attend and therefore did not advance the mitigation of a guilty plea. But it does seem to me that the interests of justice would be best served if, even at this late stage, I were to reduce his sentence by a modest amount to reflect the fact that he now accepts his contempt of court and to that extent wishes to purge his contempt. It will not be a very large reduction. Approaching the matter by analogy to criminal cases, a plea of guilty at the court door generally attracts only a very modest reduction, and it could not be more than that sort of level here. The sentence I imposed was nine months' imprisonment. In view of the apology which has now been made, I am prepared to reduce that to a sentence of eight months' imprisonment. I therefore reduce the sentence by one month on account of the apology which has now been made, but otherwise he will continue to serve that sentence until the appropriate period has been completed. The defendant must pay the claimant's costs of the application for committal, to be the subject of a detailed assessment on the standard basis in default of agreement. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII