SHOULD AN ERRANT EXPERT GO TO JAIL? COURT OF APPEAL DECISION: MAKING A FALSE STATEMENT SHOULD LEAD TO JAIL

In  Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392 the Court of Appeal set out clear guidance for courts considering sentencing in  cases relating to reckless contempt on the part of expert witnesses.  A “reckless” statement made in an expert report will normally lead to a sentence involving immediate imprisonment.  The Court of Appeal observations, however, go further that medical experts.  These matters need to be considered carefully by anyone drafting, and particularly signing, any document that is verified by a statement of truth.  (The concerns I expressed yesterday in the Litigation Futures conference about witness statements largely being drafted by those who have not read the rules and have no training seem even more apposite. The profession needs to take careful note of this).

the deliberate or reckless making of a false statement in a document verified by a statement of truth will usually be so inherently serious that nothing other than an order for committal to prison will be sufficient. That is so whether the contemnor is a claimant seeking to support a spurious or exaggerated claim, a lay witness seeking to provide evidence in support of such a claim, or an expert witness putting forward an opinion without an honest belief in its truth.”

THE CASE

The case was looked at in detail in an earlier post. The defendant was an expert in a road traffic case. He prepared a medical report after examining a claimant. The claimant’s solicitors wrote back complaining that various matters had not been reported on. The defendant, more or less, incorporated those solicitor’s comments into a revised medical report, without seeing the claimant again and despite the fact the claimant had not actually recounted those symptoms when he was seen.  The  trial judge found that

“Dr Zafar was not just negligent about the content of the revised report; he allowed the assertions referred to at paragraph 153 above to be included in the revised report, not caring whether they were true of false, and not caring whether or not the Court was misled as a result. Accordingly, he is, in those respects, guilty of contempt of court.”

SENTENCE

The trial judge sentenced the defendant doctor to six months imprisonment, suspended for two years.  The claimant appealed against this sentence to the Court of Appeal.

THE COURT OF APPEAL JUDGMENT
  1. In granting permission to appeal, the judge noted that “there is no authority or reported decision on the appropriate sentence to be passed on an expert witness whose reporting practices place him or her in contempt of court, or who tells repeated lies when questioned about them”. Of course, every case will depend on its individual facts and circumstances, but some general guidance can be given.
  2. In the context of a contempt of court involving a false statement verified by a statement of truth, the contemnor may have acted dishonestly, or recklessly in the sense of not caring whether the statement was true or false. In either case, it is always serious, because it undermines the administration of justice. In considering just how serious it is in all the circumstances of an individual case, and in deciding the appropriate punishment for contempt of court, we think that the approach adopted by the criminal courts provides a useful comparison, though not a precise analogy. In particular, the Sentencing Council’s definitive guidelines on the imposition of community and custodial sentences (see [30] above) and on reduction in sentence for a guilty plea are relevant in cases of this nature. It is therefore appropriate for a court dealing with this form of contempt of court to consider (as a criminal court would do) the culpability of the contemnor and the harm caused, intended or likely to be caused by the contempt of court. Having in that way determined the seriousness of the case, the court must consider whether a fine would be a sufficient penalty. If it would, committal to prison cannot be justified, even if the contemnor’s means are so limited that the amount of the fine must be modest.
  3. We say at once, however, that the deliberate or reckless making of a false statement in a document verified by a statement of truth will usually be so inherently serious that nothing other than an order for committal to prison will be sufficient. That is so whether the contemnor is a claimant seeking to support a spurious or exaggerated claim, a lay witness seeking to provide evidence in support of such a claim, or an expert witness putting forward an opinion without an honest belief in its truth. In the case of an expert witness, the fact that he or she is acting corruptly and makes the relevant false statement for reward, will make the case even more serious; but it will be a serious contempt of court even if the expert witness acts from an indirect financial motive (such as a desire to obtain more work from a particular solicitor or claims manager), or without any financial motivation at all, and even if the expert witness stands to gain little financial reward by it. This is so because of the reliance placed on expert witnesses by the court, and because of the corresponding importance of the overriding duty which experts owe to the court (see [33-34] above).
  4. Because this form of contempt of court undermines the administration of justice, it is always serious, even if the falsity of the relevant statement is identified at an early stage and does not in the end affect the outcome of the litigation. The fact that only a comparatively modest sum is claimed in the proceedings in which the false statement is made does not remove the seriousness of the contempt. The sum in issue in the proceedings is however relevant, because contempt of court by an expert witness will be even more serious if the relevant false statement supports a claim for a large sum, or a sum which is grossly exaggerated above the true value of any legitimate claim.
  5. As we have noted in [36] above, the essential feature of this form of contempt of court is the making of a false statement without an honest belief in its truth. In principle, where a false statement is made without an honest belief in its truth, a contemnor who acts recklessly is less culpable than one who acts intentionally. The extent of that difference in culpability will, however, depend on all the circumstances of the case. Without seeking to lay down an inflexible rule, we take the view that an expert witness who recklessly makes a false statement in a report or witness statement verified by a statement of truth will usually be almost as culpable as an expert witness who does so intentionally. This is so, because the expert witness knows that the court and the parties are dependent on his or her being truthful, and has made a declaration which asserts that he or she is aware of his or her duties to the court and has complied with them (see [33] above). To abuse the trust placed in an expert witness by putting forward a statement which is in fact false, not caring whether it be true or not, is usually almost as serious a contempt of court as telling a deliberate lie.
  6. Moreover, as the present case illustrates, the culpability of a contemnor who acts recklessly will be increased if he or she knows of circumstances which cast doubt on the accuracy of the relevant statement, but nonetheless makes it without caring whether it be true or false. When the Respondent made the first of the statements which the judge found to be false, only a week had passed since he had personally examined Mr Iqbal and found him to have made a full recovery. The Respondent therefore had good reason to question the claim of continuing pain which was now being put forward, and no obvious reason to think that he had himself made a mistake and had failed to notice or record those continuing symptoms. He nonetheless made a number of false statements without making any attempt to check their accuracy or to qualify them in any way. He made the declarations to which we have referred, and signed the statement of truth, when the contents of the revised report included (without attribution) something suggested to him by Mr Khan and was to that extent not based on his own independent view; and when the opinions which he expressed did not represent his “true and complete professional opinions” and were not his “completely independent opinion”. In all the circumstances, his culpability in our view came close to that of an expert witness who deliberately made false statements. For that reason, we respectfully disagree with the judge’s finding that the telling of one deliberate lie was the most serious aspect of the Respondent’s conduct. The seriousness of the case lies, in our view, in the putting forward of the revised report as if it represented the Respondent’s honest and independent opinion based upon his own examination of Mr Iqbal.
  7. Also relevant to the culpability of an expert witness who commits this form of contempt of court is the extent to which the witness persists in the false statement and/or resorts to other forms of misconduct in order to cover up the making of the false statement. In the present case the judge found that the Respondent, having recklessly made a number of false statements in the revised report, tried to cover up what he had done by telling a direct lie in his witness statement of August 2013 and then recklessly made further false statements in advancing a different explanation in his witness statement of October 2013. In our view, the attempted cover-up, and the making of further false statements, significantly increased the Respondent’s culpability.
  8. As we have indicated, an order for committal to prison will usually be inevitable where an expert witness commits this form of contempt of court, and counsel for the respondent realistically accepted that it was inevitable in this case. As to the appropriate length of sentence, it is important to emphasise that every case will turn on its particular facts. The conduct involved in a contempt of this kind may vary across a wide range. The court must, therefore, have in mind that the two year maximum term has to cater for that range of conduct, and must seek to impose a sentence in the instant case which sits appropriately within that range. Where more than one contemnor is before the court, as in the present case, it will of course be necessary to make a judgment as to the comparative seriousness of their respective misconduct. As we have noted at [49] above, the Lord Chief Justice in Bashir had in mind as a starting point sentences “well in excess of 12 months” even for those who played the role of “foot soldiers” in the dishonest claims in that case.
  9. In determining what is the least period of committal which properly reflects the seriousness of a contempt of court, the court must of course give due weight to matters of mitigation. An early admission of the conduct constituting the contempt of court, before proceedings are commenced, will provide important mitigation, especially if it is volunteered before any allegation is made. So too will cooperation with any investigation into contempt of court committed by others involved in the same proceedings or in other fraudulent claims. Where the court is satisfied that the contemnor has shown genuine remorse for his or her conduct, that will provide mitigation. Serious ill health may be a factor properly taken into account. Previous positive good character, an unblemished professional record and the fact that an expert witness has brought professional and financial ruin upon himself or herself are also matters which can be taken into account in the contemnor’s favour. However, in deciding what weight can be given to those matters, it must be remembered that it is the professional standing and good character of the expert witness which enables him or her to act as an expert witness, and thus to be in a position to make false statements of this kind. Breach of the trust placed in an expert witness by the court must be expected to result in a severe sanction being imposed by the court in addition to any other adverse consequences. The fact that an expert witness has brought ruin upon himself or herself, and/or the fact that he or she faces proceedings by a professional disciplinary body, will therefore not in themselves be a reason not to impose a significant term of committal.
  10. The court must also give due weight to the impact of committal on persons other than the contemnor. In particular, where the contemnor is the sole or principal carer of children or vulnerable adults, the court must ensure it is fully informed as to the consequences for those persons of the imprisonment of their carer. In a borderline case, such considerations may enable the court to avoid making an order for committal which would otherwise be made. In a case in which nothing less than an order for committal can be justified, the impact on others may provide a compelling reason to suspend its operation.
  11. As to delay, we think it important to distinguish unreasonable delay, not attributable to any fault on the part of the contemnor, from the passage of time which is a necessary consequence of the proper litigation of allegations of contempt of court. Where a contemnor has made an early admission of wrongdoing, but for reasons beyond his or her control a long period of time then passes before a court imposes a sanction for the wrongdoing, the passage of time, attended as it inevitably would be by great anxiety, may be an important point in mitigation. The position is, however, different when all wrongdoing is denied. An alleged contemnor is, of course, entitled to contest the allegation, and the fact that he or she does so cannot make the contempt more serious; but the contemnor cannot then expect much weight to be given in his or her favour to the fact that the necessary court proceedings result in the passage of a substantial period of time. In the present case, a date for the trial of the contempt allegations was vacated because one of the other parties made a late application, and it is fair to say that the proceedings against the Respondent were thereby delayed for about 9 months. That was a point to which weight could be given in the Respondent’s favour. However, it was in our view the only such point. Although it is unfortunate that the contempt proceedings took as long as they did, it was always open to the Respondent to try to shorten them by admitting his wrongdoing. He did not do so. We reject the submission on his behalf that he could not do so because he had to contest those allegations in respect of which he was successful: he could have made admissions regardless of whether the Appellant would regard them as sufficient, and, if he had done so, he would have had much stronger mitigation based on delay.
  12. Having reached a conclusion that a term of committal is inevitable, and having decided the appropriate length of that term, the court must consider what reduction should be made to reflect any admission of the contempt. In this regard, the timing of the admission is important: the earlier an admission is made in the proceedings, the greater the reduction which will be appropriate. Consistently with the approach taken in criminal cases pursuant to the Sentencing Council’s definitive guideline, we think that a maximum reduction of one-third (from the term reached after consideration of all relevant aggravating and mitigating features, including any admissions made before the commencement of proceedings) will only be appropriate where conduct constituting the contempt of court has been admitted as soon as proceedings are commenced. Thereafter, any reduction should be on a sliding scale down to about 10% where an admission is made at trial.
  13. The court must, finally, consider whether the term of committal can properly be suspended. In this regard, both principle and the caselaw to which we were referred lead to the conclusion that in the case of an expert witness, the appropriate term will usually have to be served immediately, and that one or more powerful factors justifying suspension will have to be shown if the term is to be suspended. We do not think that the court is necessarily precluded from taking into account, at this stage of the process, factors which have already been considered when deciding the appropriate length of the term of committal. Usually, however, the court in deciding the length of the term will already have given full weight to the mitigation, with the result that there is no powerful factor making it appropriate to suspend the term. If the immediate imprisonment of the contemnor will have a serious adverse effect on others, for example where the contemnor is the sole or principal carer of children or of vulnerable adults, that may make it appropriate for the term to be suspended; but even then, as Bashir shows, an immediate term – greatly shortened to reflect the personal mitigation – may well be necessary.
  14. We should add that we accept, as was submitted on behalf of the Appellant, that the fact that the relevant false statement was made recklessly rather than intentionally will not in itself usually be a powerful factor in favour of suspending the necessary term of committal.
  15. It follows from all we have said about the approach to sentencing in cases of this nature, and about the limited grounds for interfering with a decision of this nature, that there will be few cases in which a decision as to the appropriate sentence for contempt will be open to challenge in this court, whether on grounds of undue leniency or of undue severity.
  16. With all respect to the judge, however, we are satisfied that the order for committal in this case was wrong in two respects. First, the term of committal should have been significantly longer than 6 months, even taking into account the mitigation available to the Respondent: we do not think the Respondent could have appealed successfully against a term of 12 months, and we cannot think that a term of less than 9 months was appropriate. Secondly, the term should have been ordered to be served immediately, there being no powerful factor in favour of suspending it. We are satisfied that a suspended term of 6 months fell outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.
  17. Our reasons are these. In the present case, the inherent seriousness of the Respondent’s conduct in contempt of court – in particular, in the putting forward of the revised report as if it represented the Respondent’s honest and independent opinion based upon his own examination of Mr Iqbal – was aggravated by a number of factors. First, the judge found it to have been motivated initially by a desire to keep his report-writing factory running at full capacity. The Respondent was, therefore, at least indirectly motivated by a concern for financial profit. Secondly, the Respondent persisted in the conduct which constituted his contempt of court, putting forward false statements on three different occasions. Thirdly, on one of those occasions he acted with deliberate dishonesty. Fourthly, he sought on that occasion to cast the blame for his own misconduct on someone else. Fifthly, although he did not maintain that deliberate untruth for very long, he thereafter recklessly put forward another explanation which was also untrue. Sixthly, having regard to the terms of his declarations and his statement of truth, we are bound to say that we think that the recklessness which the judge found came close to the borderline between reckless and dishonesty.
  18. We accept that there were a number of matters in the Respondent’s favour, to which some weight had to be given. It seems to us, however, that the judge gave disproportionate weight to one of them, namely the fact that in most respects the misconduct was reckless rather than intentional: for the reasons we have given, there was in the circumstances of this case little difference in culpability between those two states of mind. It also seems to us that disproportionate weight was given to what was referred to as delay, the majority of the passage of time being attributable to the Respondent’s choice to contest the proceedings throughout. The disproportionate weight which he gave to those considerations contributed, in our view, to his passing a sentence which was so lenient as to fall outside the range reasonably available to him. The judge did not identify any powerful factor or combination of factors in favour of suspension.
  19. The judge’s decision as to sentence therefore falls to be reversed. We can remake that decision. We have however come to the conclusion that we should not impose a more severe sentence. We have decided not to do so, principally because we have sought in this judgment to give some guidance which was not previously available to those sentencing for contempt of court, and we accept that it would be unfair to the Respondent to impose upon him the adverse consequences of that guidance. Accordingly, our remaking of the decision would not result in any increase in the sentence, albeit that our reasons for reaching that outcome differ from those of the judge. In those circumstances we allow the appeal, but think it sufficient to declare that the sentence below was unduly lenient.