David Callow in Successful Contempt of Court Proceedings for Zurich Insurance

Advance Housing and Support Limited-v-Sandra Thomson (QBD – Northampton District Registry, 18th-20th April 2017)

Following two days of evidence Her Honour Judge Hampton (sitting as a High Court Judge) found the Defendant, Miss Thompson (“T”), guilty of contempt of court and sentenced her to an immediate 28-day custodial sentence.

Background

T brought a claim for damages following an alleged fall in the course of her employment with A as a support worker. T alleged that she had sustained an injury due to defective premises to her wrist that resulted in significant pain and restriction. She presented claims for past and future lost earnings, and for care and medical and other expenses.

Breach of duty was admitted however all aspects of causation and quantum were disputed. The parties were each given permission for expert evidence from an upper limb surgeon

A obtained surveillance which was provided to both experts. Both experts concluded that T had misled them and agreed that any injury she had suffered was short lived and likely only a minor sprain.

After the Joint Statement an application was made to strike out the claim as an abuse of process. The Claim was struck out on the basis that T had sought to mislead both experts and had consciously exaggerated her claim such that it was no longer possible to determine what the genuine elements of the claim were. Notwithstanding that there were likely genuine elements of the claim it was struck out in its entirety.

The Committal Application

A then sought and obtained permission to commence an application to commit T for contempt pursuant to CPR 81.18 (false statements of truth).

Unusually, T sought to challenge the evidence of the medical experts A had relied upon in making the application – including the evidence of her own original expert, and despite the fact that both agreed she had misled them based on comparing the surveillance evidence with their examinations. T was given permission for expert evidence from a further upper limb surgeon and the parties were given permission to call oral expert evidence at the committal hearing.

The application was heard over two days on the 18th and 19th April with a reserved Judgment being given on the 20th April 2017. All three experts gave oral evidence and A sought to prove to the criminal standard that T had deliberately presented an untrue account of symptoms to the experts in the original claim and made numerous and repeated false statements in her pleadings and witness statements. T had undergone a wide variety of medical interventions , including surgery which, on A’s case, were not required. T’s expert opined that a close analysis of T’s medical records demonstrated that she had suffered CRPS (Type I) together with CTS, both of which had been caused by the accident, but had then suffered unrelated De Quervains Tenosynovitis. He concluded that the second operation to remedy the DeQT had caused damage to a branch of her radial nerve which was the cause of genuine pain when she was examined by he original experts. A argued that on a proper analysis the medical records contained no objective evidence of any underlying pathology and thus no support for T’s case that she had suffered more than a minor sprain.

Having heard from all three experts and from T and having reviewed the surveillance footage the Judge found that an accident did take place, and that T had sustained some minor injury to her wrist; however, this bore no relation to the subsequent presentations of pain and limitation of function. T was found to have deliberately sought to mislead the experts in an attempt dishonestly to obtain an increased award of damages. The Judge rejected T’s expert evidence and accepted A’s submissions regarding T’s medical history and the clear inability of T’s expert to explain in his oral evidence how any of the pathology he identified was consistent with the surveillance. She found that T was an unreliable and inconsistent witness and that her presentation on surveillance was totally inconsistent with her presentation to the experts and that the same had been invented.

HHJ Hampton therefore found T guilty of contempt of court and sentenced to her to 28 days immediate custody having rejected T’s submission that the sentence should be suspended but accepting that there was relevant personal mitigation in support of a shorter sentence.

This case demonstrates that applications to commit for contempt are not to be limited only to those claims where an accident has been invented or where there is no evidence of any underlying condition. The surveillance footage in this case did not show T undertaking any particularly strenuous activity or indeed any of the activities she said she was unable to do. Rather it was that, on a detailed analysis of the medical evidence, the presentation on the surveillance was simply “normal” and inconsistent with the clinical presentation to the experts and the surgeons who had operated on her, and that this led to an irresistible conclusion that her account was fundamentally false.

David Callow was instructed by Martin Brown of Weightmans LLP acting on behalf of Zurich Insurance