WITNESSES, SURVEILLANCE, DEMEANOUR AND EXPERTS – IT ALL COMES DOWN TO CREDIBILITY: A PERFORMER UNLIKELY TO FOOL ALL OF THE PEOPLE ALL OF THE TIME

We have already looked at judge’s observations as to the amount of material before the court in the case of  Miley v Friends Life Ltd [2017] EWHC 2415 (QB). It was a case that rested upon credibility. Surveillance evidence, expert evidence and the “demeanour” of the claimant were background issues to the central issues of fact that the judge had to find.

“Even the most callid performer would struggle to fool all of these people all of the time.”

“Judges should exercise some caution when seeking to determine the credibility of a witness wholly or mainly on the basis of an assessment of his or her demeanour. Generally speaking, other methods of appraisal, where available, may well tend to be more reliable”

THE CASE

The claimant claimed sums due under a income policy of insurance. He case was that he suffered from chronic fatigue syndrome. The defendant insurer denied liability on the grounds that the claimant was not sufficiently ill, arguing, in essence that the claimant’s case was dishonest.  The defendant also counterclaimed for the return of sums already paid.The meant that the judge had to consider the issue of witness credibility with some care.

THE JUDGMENT

“General credibility
    1. In addition to the specific challenges to the claimant’s integrity with which I have already dealt, the defendant lists a number of other alleged examples of his being able to do more than he claims and thereafter attempting inadequately and disingenuously to explain away the inconsistencies. Such examples include but are not limited to: an occasion when he appears to have used a Boris bike on a visit to London, drafting detailed emails at short notice and organising domestic events such as eating out. These contentions are set out in detail in paragraphs 30 to 36 and 48 to 75 inclusive of the defendant’s written submissions and it would be disproportionate for me to deal with each seriatim.
    2. I would, however, make the following observations:
i) In June 2013, the claimant kept an activity diary in which he recorded, for example: going on cycle rides, working on emails, socialising and painting the garage door. Save for one venial occasion upon which he records going for a coffee with a friend when, in fact, he went out for an alcoholic drink, there is no direct contrast between what he says he was doing and what he is seen to be doing. Moreover, the fact that he recorded significant activity at a time when he was not being filmed enhances rather than undermines his credibility.

ii) I do not consider, upon a fair and objective assessment of the evidence as a whole, as the defendant contends, that the evidence reveals that the claimant has only good days as opposed to a pattern of good and bad days. In this context, I note, in particular, that any bad days are likely to have been those upon which he did not venture out of the house and were thus not captured on video.

iii) The evidence reveals that the claimant has the cognitive ability, on occasion, to deal with emails, to initiate transactions on the internet, to engage with strangers and to socialise with friends. He has been able to ski, drive and travel alone on the train. Yet again, however, he has never denied being able to perform both mental and physical activities at some level. Although he reported being blocked by a mental fug, he was also stating in 2013, before the payments under the policy were stopped, that he still tried to do at least one mental task a day and was able to read, look at his emails and use the internet for short periods. I do not find that there is a sufficient level of contrast, between (i) what the claimant has been shown to be able to do in the surveillance and other objective evidence and (ii) his own account freely given, to support the suggestion that he is lying. It is to be noted when it falls to be determined whether the level of his symptoms satisfy the threshold test for his entitlement to benefits that his work with PJL had involved long hours, frequent evening meetings and very significant and sustained levels of concentration. I must take into account, as I do, the nature of the claimant’s employment when applying the contractual test of entitlement under the policy.

iv) The defendant rightly points out that the claimant has taken frequent holidays both at home and abroad. Doubtless, this required a certain level of stamina but not one which I find to be inconsistent with the claimant’s honesty or accuracy. The claimant was simply never asked about holidays at any relevant time before the payments were stopped under the policy and I am not satisfied that he could reasonably be expected to volunteer this information unprompted.

v) The point is fairly made on behalf of the claimant that the defendant, armed as it was with hours and hours of DVD footage, could have asked him direct and specific questions the answers to which may well have put beyond doubt whether or not he was being honest and straightforward. This they chose not to do.

vi) The evidence of the extent to which the claimant is able to shop and socialise does not significantly contradict his accounts of the extent of his limitations and carries the allegation of misrepresentation no further.

vii) The defendant suggests that the video evidence does not reveal that the claimant’s friends and family behave any differently towards him than if he were fully fit. In the circumstances of this case, however, it is not apparent to me quite what overt demonstrations of assistance or concern could reasonably have been expected to have been portrayed.

    1. Whether examined individually or in combination, I am not satisfied that these or any other alleged discrepancies sustain the contention that the claimant’s evidence is contaminated by dishonesty. I must not lose sight of the fact that the claimant was being subjected to a sustained and legitimately hostile cross examination about the details of events and transactions which happened some considerable time ago. Against this background, it is not entirely surprising that his responses, on occasion, were defensively speculative. I do not find, however, that he resorted to deceit as opposed to a wary reluctance too readily to accept the conclusions he was being invited to draw from the evidence presented to him.
MOTIVE
    1. The defendant suggests that the claimant had a strong motive to go off on long term sickness which would, whether consciously and/or subconsciously, tempt him to invent or overstate his level of symptoms to achieve and maintain the secondary gain of payments under the policy. My attention has been drawn to a distinctly mixed review of the claimant’s performance at work over the period 2008/2009 and, more particularly, to the fact that it was known by the summer of 2009 that his job was at risk. Indeed, his actual post was found to be redundant to the needs of his employers by the end of the following year. Set against this background, it is said that there was every incentive for the claimant to default to the presentation of fraudulent or exaggerated incapacity.
    2. There are, however, a number of difficulties with this analysis. At the time of his illness, he was only 42 years old with a proven professional track record. The prospect of his continuing employment with PJL in a different role had been left not fully explored and it was also a matter of speculation as to whether he may alternatively have found well remunerated employment elsewhere. Furthermore, with every passing year out of work the claimant would be prejudicing his chances of ever returning to highly remunerative employment whilst still operating under the constant threat of the termination of his insurance payments should it be determined that he was no longer entitled to them. In addition, the ceiling of his benefits amounting to 75% of his earlier earnings operates, as it was clearly intended to do, as a disincentive to giving up on work.
    3. On balance, therefore, I am satisfied that the claimant was not unduly influenced by the rewards of claiming under the policy so as to give rise to an exaggerated presentation of his condition.
OTHER LAY WITNESSES
    1. It would be wrong simply to relegate the significance of the evidence of the lay witnesses called on behalf of the claimant to the status of a supine target against which the strength of the defence case is to be tested. Of course, the evidence of the claimant’s wife, his mother and his close friends was always and understandably likely, at the very least, to be sympathetically inclined towards his case. Love and affection breed loyalty. Nevertheless, the level of contact which each has maintained over the years with the claimant must mean, on the defendant’s case, that:
i) they are complicit, at least to some degree, in his fraud and have loyally perjured themselves in his cause; or

ii) he has managed to sustain a sufficiently consistent and credible portrayal of serious disability to fool them; or

iii) he has convinced himself, wrongly, that his symptoms are sufficiently serious to entitle him to claim and they, equally wrongly, agree; or

iv) a combination of two or more of the above applies.

    1. The evidence of the claimant’s wife, Rachel, was that:
i) almost without exception he goes to bed between about 8.30 and 9pm;

ii) they do not have nights out;

iii) he only rarely drives;

iv) he presents as being depressed and frustrated on a daily basis.

    1. The evidence of the claimant’s mother, Sheila Sykes, was that:
i) on more than one occasion she has visited the claimant and found him in bed or immobile on the sofa;

ii) if he has to arrange something for his wife or daughter, for example, buying a birthday card, he relies on her assistance and she goes out with him to help;

iii) she acted on his behalf on a successful appeal in respect of his application for Employment and Support Allowance because he was unable to cope with the prospect of doing it on his own;

iv) she has observed the strain which the claimant’s presentation has put upon his wife and daughter.

    1. Mr Woodfield, a friend of the claimant of 35 years’ standing, said:
i) in contrast to the position before the diagnosis of CFS, it was he, rather than the claimant, who would now initiate any social outings together ;

ii) often, the claimant would not want to make the effort to socialise;

iii) on those occasions upon which they were together, the claimant would, after a while, become visibly tired;

iv) in summary, the claimant is a shadow of his former self.

    1. Mr Finlay, another close and long term friend, said:
i) he still sees the claimant about once a week but these arrangements are rarely initiated by the claimant himself;

ii) their meetings are shorter than they had been hitherto;

iii) the claimant visibly deteriorates as time goes by with signs of fatigue;

iv) in broad terms, he is not the man he was.

    1. Each of these witnesses was properly and robustly challenged in cross-examination but, for the most part, they were not drawn away significantly from the contents of their witness statements which stood as their evidence in chief.
    2. I take the view that, bearing in mind the extent and duration of the contact which each of these witnesses has maintained with the claimant over recent years, it is improbable that they are primarily the victims of any persistent deceit on his part. Even the most callid performer would struggle to fool all of these people all of the time. Furthermore, such a performance would take such a sustained and unremitting effort of self-control on the claimant’s part as to render his quality of life almost as impaired as if he were suffering from a genuine medical condition which gave rise to such limitations.
    3. It follows that the scrutiny to which the evidence of the claimant and his witnesses have been exposed has focussed, in particular, upon their veracity as opposed to their gullibility.
    4. I will now look in turn at the various respects in which such evidence has been challenged on behalf of the defendant but, recognising in so doing, that ultimately it is the complete picture which is of paramount importance.
Mrs Miley
    1. The defendant contends that Mrs Miley has been complicit in lying on her husband’s behalf with respect to a number of matters including family holidays, his activities in the aftermath of the CPAD in August/September 2013 and on the content of the DWP forms.
    2. In summary, it is contended that she deliberately understated (in her oral evidence, her witness statement and in her contribution to the filling out of the DWP forms) the number of holidays and short breaks taken by the claimant. In particular, she did not mention the trip to Southampton following the CPAD tests. Furthermore, she exaggerated the levels of the claimant’s incapacity.
    3. The strength of these contentions is, however, diminished by the fact that, as with many of the points raised against the claimant, himself, the defendant is seeking to contrast the specific with the generic. The general descriptions given by Mrs Miley and relied upon by the defendant seldom contain any absolute denial that the claimant could or did ever perform any particular tasks or engage in any particular activity. In this context, it is to be appreciated that her natural instincts would inevitably have been to emphasise the extent to which the claimant’s life had been affected. She would predictably and understandably have wished to ensure that her perception of any adverse changes in what he is able to achieve are properly prioritised in her narrative. I accept, therefore, that to this extent she was not an independent or objective witness; but that does not make her a liar.
    4. I am fortified in this view by the fact that she made clear concessions that, for example, it was not she who had ridden the Boris bike and that she had not completed the financial review forms on behalf of the claimant. A determined liar would have been supple enough at least to prevaricate on these issues.
    5. Furthermore, having had the opportunity to observe Mrs Miley give evidence, I concluded from her response to cross examination and to her demeanour that she was genuinely trying to avoid misleading the court even when she was under the clear temptation to advocate her husband’s case. I am satisfied that where loyalty and accuracy appeared to be in conflict she was doing her best in difficult circumstances to prevent the former from dominating the latter. That she may not have been entirely successful in this regard does not make her dishonest.
The other witnesses
    1. My assessment of the other lay witnesses called on behalf of the claimant is similar. I have no doubt that their natural allegiance to the claimant was bound to have the consequence that they were uncomfortable with the suggestion that he had been faking his symptoms and they were thus taking a defensive rather than a wholly disinterested perspective on the evidence. Nevertheless, in none of their cases did I conclude that he or she was being dishonest. Again, the defendant was unable to point to any specific issue in respect of which any of these witnesses was telling a downright lie. The contrast was, once more, largely between the general descriptions of the witnesses and examples of specific events relied upon by the defendant which it was contended were inconsistent with such general description. Having had the advantage of hearing and seeing these witnesses give evidence, I am satisfied that they were doing their best to help the court notwithstanding their feelings of loyalty to the claimant.
SURVEILLANCE
    1. Between December 2010 and August 2013, the claimant was put under surveillance over five separate periods. The relevant surveillance reports are, in total, over one hundred pages in length. The parties have analysed what is revealed in the finest of detail. I do not find it difficult to resist the temptation to do the same. I have taken into account the points made both orally and in writing on this issue and consider it necessary and proportionate simply to summarise my views on the central issues.
    2. In December 2010, the claimant is seen: going out in his car, shopping, attending the dentist and going to his daughter’s nativity play. On one occasion, he goes to the local public house where he is overheard by the surveillance operatives to say words to the effect that that he had only been out a couple of times that year because the weather was bad and he was not feeling well.
    3. Nearly two years later, in November 2012, a second tranche of surveillance took place. During this period, the claimant was seen to visit a pub with a friend and take his bicycle out for less than 15 minutes.
    4. I note that these periods of observation did not generate a level of suspicion on the part of the defendant sufficient to prompt immediate further surveillance. Indeed, it was not until April 2013 that the covert filming resumed. The claimant was seen to go out on his bicycle and being given lifts to and from a beer festival.
    5. The penultimate period of observation took place in June 2013. This was carried out in response to a request from the defendant, an employee of whom had written to the surveillance team saying: “I’d like 5 more days, with the idea being to see Charles as active as possible.” This request was carried out but over that period of five days, the claimant left the house only once when he went to a public house with a friend in the afternoon. Perhaps unsurprisingly, the author of the request was not confident of the value of the evidence which had been gathered. In a referral sheet dated 9 July 2013, he recorded that the evidence was “disappointing as only observed on one day out of 5 when he visited pub…”. He went on to give his recommendation: “I’m not now convinced that we’ll be able to end this claim for misrepresentation…” and went on to consider “CPAD assessment or other evidence.”
    6. And so it was that the final period of surveillance was that which coincided with the CPAD assessment.
    7. During this period, the claimant is filmed attending for the two days of his CPAD assessment. On others days, he is recorded going to the beer festival to which I have already made reference and returning home having been out for some unspecified period with his dogs.
    8. There is no surveillance evidence before the court relating to any period after the defendant ceased making payments under the policy in September 2013.
    9. I have reached the conclusion that the surveillance evidence, whether taken on its own or in combination with all the other evidence in the case, falls very far short of undermining the claimant’s case that he is telling the truth about his levels of disability or that his medical condition is sufficiently serious to entitle him to claim under the policy. I make the following observations:
i) Once more, there is a lack of flat and unequivocal contradiction between what the surveillance evidence reveals and what the claimant says he has done. Had the claimant, for example, denied ever going to the pub or going cycling then the defendant’s case would have been immeasurably strengthened. As it is, the value of the surveillance evidence is undermined by the far weaker contrast between the general and the specific.

ii) Consistently with the claimant’s evidence and that of his wife, the video evidence reveals no occasion upon which the claimant goes out in the evening whether with friends or otherwise.

iii) There are a number of days on which he is not seen to leave the house at all.

iv) Despite the fact that Mrs Miley is in work, there are a number of occasions when she undertakes other duties, such as mowing the lawn and doing the school run when the claimant does not appear to be otherwise occupied.

v) The footage of the second visit to the CPAD assessment clearly shows the claimant struggling to walk the distance to the car. The defendant is constrained to explain this by speculating that the claimant was putting on a show because he may have suspected that he was under surveillance. However, this suggestion does not explain why, if the claimant were alerted to the possibility that he was being watched, that he did not curtail his activities for a longer period. The claimant said under cross examination that he was unaware that he was being filmed at any stage and I believe him.

DEMEANOUR
    1. The defendant suggests that the claimant’s demeanour when giving evidence in court was inconsistent with his previous responses to examinations and questions from, for example, Mr Newman and Dr Williams when he seemed to shut down altogether.
    2. Judges should exercise some caution when seeking to determine the credibility of a witness wholly or mainly on the basis of an assessment of his or her demeanour. Generally speaking, other methods of appraisal, where available, may well tend to be more reliable. Bearing this in mind, however, I am of the view, in this particular case that it was advantageous for me to be able to observe the claimant not only when giving evidence but also when he was sitting in the well of the court watching proceedings.
    3. There were times when he appeared to lose concentration and hold his head in his hands. At other times he was more attentive. His period of inattention did not, however, seem to correspond to particular longueurs in the evidence and this pattern was sustained over the successive days over which the trial took place. I witnessed nothing in his presentation which appeared to contradict his evidence or that of his witnesses concerning the impact which his illness had had on him. Indeed, I would go further and conclude that his behaviour and appearance in court provided at least some level of support for his case.
EXPERT EVIDENCE
    1. Reports were prepared and oral evidence given by experts in two disciplines. Professor Findley and Mr Tandy were the claimant’s experts in CFS and functional capacity respectively. The defendant relied on Professor Cleare and Dr Williams in corresponding areas of expertise. There is no dispute that each expert was fully qualified to assist the court in their areas of speciality and I have formed the view that there is no compelling basis upon which their qualifications can usefully be distinguished. In all, their written evidence comprised over 400 pages of reports and appendices.
    2. There were, however, areas of agreement. In particular, there was no dispute that the Fukuda classification, to which I have already referred, is a reasonable one to use as a basis for diagnosing CFS. Such diagnosis is reached through a combination of taking a detailed history, examining the patient and undertaking specific investigations to rule out alternative causes. It is not possible to diagnose CFS through physical testing alone, by questionnaire alone or a combination of the two. All agreed that unreliable reporting would impact upon the clinician’s ability to make a diagnosis of CFS but accepted that CFS can, in itself, lead to altered perceptions of symptoms on the part of the sufferer. The significance of such discrepancies must be a matter of degree which raises an issue which cannot be wholly resolved by scientific analysis. The decision must ultimately be that of the court.
    3. In summary, the evidence of Professor Findley was that the features of the case relied upon by the defendant including but not limited to: the claimant’s ability to ski, drive, cycle and compose detailed emails did not, taken as a whole, militate against a diagnosis of moderate to severe CFS. He placed particular emphasis on the fluctuating nature of the condition and was not persuaded that the examples given by the defendant pointed towards motives amounting to what were described as “secondary gain”.
    4. Professor Cleare took a more sceptical approach suggesting that the court could conclude from the evidence as a whole that the difference between the reported levels of symptoms and impairment and the other evidence in the case casts significant doubt upon the diagnosis of CFS. He conceded, however, that, looking at the documentation comprising the contemporaneous medical presentation of the claimant, he would not have had a particular difficulty in diagnosing CFS, despite some atypical features. He went on to accept that in the early stages there probably was a level of CFS but questioned the persistence and severity of the condition. He went on realistically to defer to the judgment of the court on the extent of any unreliability thereafter to be inferred from the other evidence such as the surveillance footage. However, he was reluctant to conclude that on any reading of the evidence the level of the claimant’s symptoms was other than mild.
    5. Mr Tandy and Dr Williams agreed that physical capacity alone was not a good indication when considering a diagnosis of CFS or its severity because significant psychological factors including resilience, confidence and subjective cognitive ability had to be taken into account. Dr Williams, however, placed particular reliance on the inference that cycling at a particular level of effort over the speed and distance shown in the surveillance evidence suggested that the claimant had not been deconditioned by prolonged periods of inactivity and thus suggested a history and pattern of exercise. He attempted to assess qualitatively the amount of physical effort required to cycle over the distance and at the speed shown in the surveillance evidence. Mr Tandy was generally more cautious in his approach to the evidence in the case and more ready to defer to the professors when looking at the range of likely diagnostic conclusions.
    6. This is not a case in which the competing views of the experts present the court with a black and white choice between competing diagnoses. The categorisation of CFS as mild, moderate, severe or very severe is a necessarily imperfect attempt to impose a system of taxonomy on a condition of widely variable and elusively fluctuating presentation. More particularly, experts in this field are dependent, to a substantial degree, upon disputed and controversial primary facts upon which their respective assessments are, at least partly, to be based. Thus the issue as to whether the claimant is lying is inextricably bound up with the issue as to which expert evidence to prefer. It may well be for this reason that there were occasions when Professor Findley and Professor Cleare each gave the appearance of placing greater emphasis on the primary evidence which would seem to be more consistent with their respective medical conclusions. The defence experts, for example, naturally focussed on such activities as skiing and cycling whilst, in the case of Professor Cleare, appearing to be somewhat uncomfortable about the video evidence showing little or no activity in any given day.
    7. It would be wrong to approach the expert evidence in this case as if in a vacuum. Of course, expert evidence informs, to an extent, the question as to whether the claimant is exaggerating but the reverse is also true. The claimant’s general credibility (or lack of it) may also inform the issue as to the evidence of which experts is to be accepted.
    8. As appears from my assessment of all of the non-expert evidence in this case, I am, on balance, satisfied that the claimant has not been dishonest and has not formed a subjective assessment of his levels of disability which significantly belies the objective reality. The balance of the expert evidence, when introduced into the equation, at whatever stage, does not change my view.
    9. In summary, I found the evidence of Professor Findley on the whole to be more persuasive than that of Professor Cleare. I found the latter to be particularly hesitant about making sufficiently prompt concessions where he may have thought that they may have lent some credence to the claimant’s case. In particular he appeared to be unnecessarily reluctant in reaching the conclusion, which he eventually did, that the claimant probably was suffering from some level of CFS in the early stages of his presentation. I also formed the view that Professor Findley’s approach more closely reflected the uncontroversial understanding of CFS as an elusive and fluctuating condition. In this context, reference can be made to the CFS/ME Working Group of January 2002:
“During the course of preparing the report, the Working Group has continued to be concerned at the widespread controversy surrounding the existence and nature of CFS/ME. Patients, their carers, and healthcare professionals encounter different levels and varying manifestations of disbelief and prejudice against people affected by the condition. The disbelief and controversy over CFS/ME that exists within the professions has done nothing to dispel public disbelief in the existence of such a seemingly varied and inconstant illness.”
None of the experts in this case disavows the existence of CFS as a real pathology but it is the reference to it as a “varied and inconstant illness” which resonates against the background of this case.
    1. The authors go on to observe:
“Indeed, there may be severe impact on people’s lives even of less overtly severe CFS/ME, as the descriptions offered by Cox and Findley for mild and moderate CFS/ME suggest. Such patients may suffer most impact through the discrepancy between what they were able to achieve previously and what they can now do. Even less prolonged illness, whatever the severity, can have very substantial personal and social impact, mainly intrusions on the individual, relationships, work, and finances. Self-confidence and self-esteem are severely eroded in many cases.”
    1. I found Dr Williams’ extrapolations concerning the level of effort which the claimant was seen to put in when, for example, cycling and the likely effect of deconditioning to be somewhat strenuous and speculative. I concluded that his evidence really added nothing of significance to the exercise of forming a realistic conclusion from the DVD evidence and the reports of the surveillance operatives.
    2. For my own part I was unpersuaded that the claimant’s presentation (including, by way of example only, his skiing and cycling and cognitive capacity) was so atypical of a level of CFS, which was sufficiently serious to bring him within the terms of the policy cover, as to undermine my conclusion as to his general veracity and accuracy.
CONCLUSION
  1. It follows that, having reviewed the central issues in the case in turn and then stepping back and taking all the evidence as a whole, I am satisfied that the claimant has discharged the burden of demonstrating that he suffers from CFS at a level sufficiently debilitating to entitle him to the requisite benefits under the policy. I find that he has not deliberately fabricated or exaggerated the extent of his disability and that his subjective assessment of the severity of his condition is not materially worse than the objective truth. Of course, this is not a personal injury claim and so the claimant’s continued entitlement to benefits is not fixed in stone by my judgment in this case. He is entitled, therefore, to judgment in respect of the payments which he has not received since September 2013 up to 26 July 2017 together with interest thereon but not to any declaration in respect of payments thereafter. It must also follow that the counterclaim fails.

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