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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Calderdale and Huddersfield NHS Foundation Trust v Atwal [2018] EWHC 961 (QB) (27 April 2018) URL: https://www.bailii.org/ew/cases/EWHC/QB/2018/961.html Cite as: [2018] EWHC 961 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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Claimant |
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- and - |
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Sandip Singh ![]() | Defendant |
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The defendant was not present and was not represented.
Hearing date: 12th April 2018
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Crown Copyright ©
Mr Justice Spencer:
Introduction and overview
Background to the original claim
General damages: £35,938
Past losses and interest: £123,994
Future loss of earnings: £255,351
Future care and equipment etc: £421,826.
The application to commit
(1) He returned to his music and DJ career by 2011 at the latest and pursued it with the same vigour as before the assault in 2008.
(2) His recovery from the injuries suffered in the assault was probably complete by 2010 at the latest, and thereafter the position was as follows.
(3) He worked as a taxi driver and a courier without restriction from the effect of his injuries.
(4) He was not inhibited in driving or working in any capacity.
(5) He was not socially reclusive, housebound or depressed as a result of his injuries.
(6) He did not abuse alcohol.
(7) He did not require care and assistance from his family as a result of his injuries.
(8) He had no ongoing or future needs for care, assistance, equipment or therapies as a result of his injuries.
The legal framework
(i) the defendant deliberately set out to deceive the doctor or expert in question by falsely representing the extent of his continuing symptoms, either in the physical manner of his presentation or by lies told by the doctor or expert, or both;
(ii) the defendant must have intended thereby to interfere with the administration of justice;
(iii) the conduct complained of must have had a tendency to interfere with the administration of justice.
For examples of contempts of this nature, see Airbus Operations Ltd v Roberts [2012] EWHC 3631 (Admin), and Homes for Haringey v Fari [2013] EWHC 3477 (QB).
"(1) Proceedings for contempt of court may be brought against a person if he 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."
CPR part 22 provides that among the documents which must be verified by a statement of truth are a schedule of expenses and losses in a personal injury claim, and a witness statement. The contempts alleged in this case include examples of false statements in both such documents.
(i) the statement in question was false;
(ii) the statement has, or if persisted in would be likely to have, interfered with the course of justice in some material respect;
(iii) at the time it was made the maker of the statement
(a) had no honest belief in the truth of the statement; and
(b) knew of its likelihood to interfere with the course of justice.
These principles are well established on the authorities, and were confirmed (for example) in AXA Insurance UK plc v Rossiter [2013] EWHC 3805 (QB).
Proceeding in the defendant's absence
(i) the nature and circumstances of the defendant's behavior in absenting himself from the trial and in particular whether his behavior is deliberate, voluntary and such as plainly waived his right to appear;
(ii) whether an adjournment might result in the defendant being caught or attending voluntarily;
(iii) the likely length of such an adjournment;
(iv) whether the defendant, though absent, is, or wishes to be, legally represented;
(v) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;
(vi) the general public interest that a trial should take place within a reasonable time of the events to which it relates.
(i) whether the defendant has been served with the relevant documents including notice of the hearing;
(ii) whether the defendant had sufficient notice to enable him to prepare for the hearing;
(iii) whether any reason has been advanced for his non-appearance;
(iv) whether by reference to the nature and circumstances of the defendant's behaviour he has waived his right to be present; i.e. is it reasonable to conclude that the defendant knew of and was indifferent to the consequences of the case proceeding in his absence;
(v) whether an adjournment would be likely to secure the attendance of the defendant or at least facilitate his representation;
(vi) the extent of the disadvantage to the defendant in not being able to present his account of events;
(vii) whether undue prejudice would be caused to the applicant by any delay;
(viii) whether undue prejudice would be caused to the forensic process if the application were pursued in the absence of the defendant;
(ix) take account of the overriding objective, including the obligation of the court to deal with the case justly, doing so expeditiously and fairly, and taking any step or making any order for the purposes of furthering the overriding objective.
Service of the committal application
The evidence relied upon
Chronological summary of evidence relied upon
54. On 9th June 2010 the defendant attended the accident and emergency department at a hospital in Nuneaton, reporting that he had pain in his right foot after being "tackled on [Monday] whilst playing football". This sheds considerable light on his claim to be socially reclusive and housebound.
The surveillance evidence
The social media evidence
The medical records
"It is therefore necessary to remind ourselves of the evidential status of such material. What the doctor writes down as having been told him by the patient, as opposed to the opinion he expresses on the basis of those statements, is not at that stage evidence of the making of the statement that he records. Rather where, as here, the record is said to contradict the evidence as to fact given by the patient, the record is of a previous inconsistent statement allegedly made by the patient. As such, the record itself is hearsay. It may however be proved as evidence that the patient did indeed speak as alleged in two ways. First, if the statement is put to the witness, she may admit to having made it. Alternatively, if she does not "distinctly" so admit the statement may be proved under section 4 of Lord Denman's Act 1865. Second, by section 6(5) of the Civil Evidence Act 1995 those provisions do not prevent the statement being proved as hearsay evidence under section 1 of that Act. If the court concludes that such inconsistent statement has been made, that goes only to the credibility of the witness; the statement itself cannot be treated itself as evidence of its contents. Authority is scarcely needed for so protean a proposition, but I would venture to mention the observations of Lord Esher MR in North Australian v Goldborough [1893] 2 Ch 381 at p386."
"It is clear from the definition in s.1(2)(a), and from the terms of s.6, that the new rule of admissibility applies both to third party hearsay, and to previous statements of a witness. In the latter case, as much as in the former, such admissibility operates to prove the truth of the matter stated. Section 1(2)(b) makes it quite explicit that admissibility extends to hearsay of any degree."
"Although only if proved under s.1, as authorized by s.6(5): see Denton Hall Legal Services v Fifield [2016] EWCA Civ 169,[2006] LlR Med 251, Buxton LJ, [77]; but see Stockdale (2006) 156 NLJ 751."
"Nothing in this section shall be construed as preventing a statement of any description referred to above from being admissible by virtue of section 1 as evidence of the matters stated."
See also the arguments of counsel in Charnock v Rowan [2012] EWCA Civ 2, at [20] - [21]in relation to the effect of Buxton LJ's observations in Denton Hall.
"From the medico-legal perspective, he claims that his index hand injuries have destroyed his life and prevent him from doing anything and have led to frustration and depression weight-gain and excessive drinking. In parallel, MrAtwal has been seeking repeated medical assistance for symptoms of gout, including multiple attendances at A & E, and yet in his general practice and hospital records, there is almost no mention of the index injuries that form the basis for his compensation claim, and certainly no evidence of the sorts of disability accruing from his injuries of which he complains at medico-legal interview. This is at least unusual."
Findings of contempt
The allegations
(1) inability to work as a DJ;
(2) inability to work as a courier or otherwise;
(3) inability to lift items or help around the house;
(4) the requirement for care;
(5) the requirement for therapy for psychiatric problems.
I shall consider the individual allegations of contempt under these five headings.
(1) Working as a DJ
(1) telling Mr Clark on 26th October 2011 that he had no confidence in his speech as a result of his injury to his lip (32.1.1)
(2) telling Mr Clark on the same occasion that he had lost confidence in his ability to perform as a professional DJ and now had to delegate this task to an assistant (32.1.2)
(3) telling Professor Morgan on 8th October 2013 that he was exquisitely self conscious in relation to his lip (32.2.1)
(4) asserting in his witness statement "I have no confidence going out…" (33.5)
(5) asserting in the schedule of loss and damage that he was unable to work as a DJ due to loss of strength and dexterity in his hands (34.2).
(2) Work as a courier or otherwise
There are eight allegations of contempt which can conveniently be grouped under this heading:
(6) telling Professor Davis on 26th August 2014 that he had tried to work as a courier but stopped after one day because of numbness and tingling of the right hand (32.4.1)
(7) telling Professor Davis on the same occasion that he tried to work as a courier again one year later but stopped after two days, again because of numbness and tingling of the right hand (32.4.2)
(8) telling Dr Vincenti on 17th December 2014 that it proved impossible for him to any of the lifting that was part of the job [of a courier driver] (32.6.1)
(9) telling Ms Dawn Hales on 23rd November 2015 that he was unemployed (32.7.1)
(10) telling Ms Hales on the same occasion that he continued to use his left hand predominantly when undertaking upper limb activities (32.7.2)
(11) saying in his witness statement that "driving is also very difficult now as well" (33.2)
(12) saying in his witness statement that "I find it hard driving a manual vehicle with the gear changing" (33.3)
(13) asserting in the schedule of loss and damage that he had no employment prospects (35.1).
(3) Lifting and helping around the house
(14) the assertion in his witness statement "I am unable to assist with household tasks and I cannot go shopping as I did before as I cannot pack or lift heavy shopping bags" (33.1)
(15) the assertion in the schedule of loss and damage that he struggled to lift or carry items and this affected him on a daily basis (34.1)
(16) the assertion in the schedule of loss and damage that he was unable to assist at home (34.4).
(4) The requirement for care
(17) the assertion in the schedule of loss and damage that from December 2008 to November 2014 he required and received an average of 3.75 hours of care and assistance from his family per day (34.5)
(18) the assertion in the schedule that he continued to require 3.75 hours of care and assistance a day (34.6)
(19) The assertion in the schedule that in due course he would need to pay for agency care when his family became unable to care for him (35.4).
Phase One: £8,236
Phase Two: £93,595
Phase Three: £65,469.
(5) The requirement for therapy for psychiatric problems
(20) the assertion in the schedule of loss and damage that he required ongoing physical and psychological support due to the nature of the disabilities arising out of the injury in 2008 (35.2)
(21) the assertion in the schedule that he would require cognitive behavioral therapy for major depression resulting from the injury from 2008 (35.5)
(22) the statement to Dr Vincenti on 17th December 2014 that he was currently drinking five or six bottles of spirits in the average week (32.6.3).
Conclusion
No.1: He told Mr Stuart Clark, consultant maxillo-facial surgeon, on 26th October 2011 that he had no confidence in his speech as a result of the injuries to his lip.
No.2: He told Mr Stuart-Clark, consultant maxillo-facial surgeon, on 26th October 2011 that he had lost confidence in his ability to perform as a professional disc jockey and now had to delegate these tasks to an assistant.
No.5: He asserted in his schedule of loss and damage, verified by a statement of truth dated 20th November 2014, that he was unable to work as a DJ due to loss of strength and dexterity in his hands.
No.8: He told Dr Vincenti, consultant psychiatrist, on 17th December 2014 that it proved impossible for his to do any of the lifting that was part of the job of a courier driver.
No.9: He told Ms Dawn Hales, care expert, on 23rd November 2015 that he was unemployed.
No.10: He told Ms Dawn Hales, care expert, on 23rd November 2015 that he continued to use his left hand predominantly when undertaking upper limb activities.
No.11: He said in his witness statement, verified by a statement of truth dated 20th November 2014, that "driving is also very difficult now as well".
No.13: He asserted in his schedule of loss and damage, verified by a statement of truth dated 20th November 2014, that he had no employment prospects.
No.14: He said in his witness statement, verified by a statement of truth dated 20th November 2014, that "I am unable to assist with household tasks and I cannot go shopping as I did before because I cannot pack or carry heavy shopping bags".
No.15: He asserted in his schedule of loss and damage, verified by a statement of truth dated 20th November 2014, that he struggled to lift or carry items and this affected him on a daily basis.
No.17: He asserted in his schedule of loss and damage, verified by a statement of truth dated 20th November 2014, that from December 2008 to November 2014 he required and received an average of 3.75 hours care and assistance from his family per day.
No.18: He asserted in his schedule of loss and damage, verified by a statement of truth dated 20th November 2014, that he continued to require 3.75 hours of care and assistance per day.
No.19: He asserted in his schedule of loss and damage, verified by a statement of truth dated 20th November 2014, that in due course he would need to pay for agency care when his family became unable to care for him.
No.20: He asserted in his schedule of loss and damage, verified by a statement of truth dated 20th November 2014, that he required ongoing physical and psychological support due to the nature of the disabilities arising out of the injury in 2008.
Interference with the due administration of justice
32. The Respondent made the following statements to medical and other experts:
32.1 On 26 October 2011 the Respondent told Mr Stuart Clark, Consultant Maxillo-Facial Surgeon, that:
32.1.1 he had no confidence in his speech as a result of the injury to his lip;
32.1.2 he had lost confidence in his ability to perform as a professional disc jockey and now had to delegate these tasks to an assistant.
32.2 On 8 October 2013 the Respondent told Professor John Morgan, Consultant Psychiatrist, that:
32.2.1 He was exquisitely self-conscious in relation to his lip;
[32.2.2 Attempts to run a courier service were unsuccessful because of his struggle to lift heavy objects].
[32.3 On 20 March 2014 the Respondent told Seumas Halliday, Employment Consultant, that he had not done any work as a courier recently].
32.4 On 26 August 2014 the Respondent told Professor TRC Davis, Consultant Hand Surgeon, that:
32.4.1 He had tried to work as a courier but stopped after one day because of numbness and tingling of the right hand;
32.4.2 He tried to work as a courier again one year later but stopped after two days, again because of numbness and tingling of the right hand.
[32.4.3 He drove only rarely].
[32.5 On 30 October 2014, he told Ms Utting, Care Expert, that he had tried working as a courier but was unable to manage the role].
32.6 On 17 December 2014, he told Dr Vincenti, Consultant Psychiatrist, that:
32.6.1 [He tried to obtain work as a courier driver, but] it proved impossible for him to do any of the lifting that was part of the job [of a courier driver]
[32.6.2 He did very little in the day other than watch TV];
32.6.3 He was currently drinking five or six bottles of spirits in the average week.
32.7 On 23 November 2015, he told Ms Dawn Hales, Care Expert, that:
32.7.1 He was unemployed;
32.7.2 He continued to use his left hand predominantly when undertaking upper limb activities.
False statements of truth
33. In his witness statement dated 20 November 2014 which was verified by a statement of truth signed by him, the Respondent said:
33.1 "I am unable to assist with household tasks and I cannot go shopping as I did before as I cannot pack or carry heavy shopping bags."
33.2 "Driving is also very difficult now as well."
33.3 "I find it hard driving a manual vehicle with the gear changing."
[33.4 "As time went on it was clear that I was unable to continue with couriering [in 2014]."
33.5 "I have no confidence going out [and tend to stay indoors a lot]."
[33.6 "I have no income.]"
34. Further, the Respondent made the following statements and representations in the Schedule of Loss and Damage dated 20 November 2014, which was verified by a statement of truth signed by him:
34.1 That he struggled to lift or carry items and this affected him on a daily basis.
34.2 That he was unable to work as a DJ due to loss of strength and dexterity in his hands.
[34.3 That he remained largely unemployed from 01 August 2008 to 21 November 2014].
34.4 That he [had been unable to return to work and] was unable to assist at home.
34.5 That from December 2008 to November 2014 he required and received an average of 3.75 hours of care and assistance from his family per day.
34.6 That he continued to require 3.75 hours of care and assistance per day.
[34.7 That from November 2008 to November 2014 he had spent £4.79 per week on Cura Heat Packs, totalling £1499.94].
35. Further, in the Schedule of Loss and Damage dated 20 November 2014, the Respondent confirmed the assertions that he:
35.1 Had no employment prospects;
35.2 Required ongoing physical and psychological support due to the nature of the disabilities arising out of the injury in 2008;
[35.3 Would continue to require care and assistance from his family in the amount of 3.75 hours per day];
35.4 In due course he would need to pay for agency care when his family became unable to care for him;
35.5 Would require cognitive behavioural therapy for major depression resulting from the injury in 2008;
[35.6 Would require a driving assessment and adaptations to future vehicles];
In relation to each and every statement and representation set out above at Paragraphs 32 to 35 or any of them:
(A) The statement or representation was false,
(B) The statement or representation, if persisted in, would have interfered with the administration of justice in that it would have caused the Respondent to be awarded more damages than he was entitled to,
(C) At the time that the Respondent made the statement or representation he had no honest belief in its truth and knew the same to be false,
(D) At the time that the Respondent made the statement or representation he knew that it would be likely to interfere with the administration of justice.