WHY THE LYING LITIGANT SHOULD FRET: COURT OF APPEAL DECISION ON CONTEMPT: WHEN FACEBOOK FLATLY CONTRADICTS PART 18 REPLIES
In Zurich Insurance Plc v Romaine  EWCA Civ 851 allowed an appeal by an insurer so that an application for committal for contempt of court can proceed. No substantive findings of fact have been made. The judgment shows that insurers are able to, and perhaps should, bring proceedings for contempt in low value cases even when a claimant discontinues promptly upon potential dishonesty being exposed. It also provides another example of a defendant being able to show that the claimant’s case is palpably untrue – simply by looking at that claimant’s own social media accounts.
“Whilst the CPR do not provide (or allow) for a penal notice to be attached to a “Statement of Truth”, it is difficult to conceive of circumstances where a claimant can be heard to say that he was prejudiced by the absence of warning about the risks of contempt proceedings if he, himself, has been responsible for bringing a fraudulent claim.”
Mr Romaine issued proceedings alleging hearing loss caused by exposure to noise. The insurers in that action asked a number of questions relating to the claimant’s exposure to noise outside th workplace. The replies given were demonstrably false. Mr Romaine discontinued the proceedings. The insurers issued proceedings for contempt of court. Permission to bring proceedings is necessary and was refused by the High Court judge. The insurer appealed. The Court of Appeal allowed that appeal.
(I have referred to the parties as “Mr Romaine” and “the insurer”. Mr Romaine was the claimant in the initial action for industrial deafness. He is the defendant in this action which is brought by the insurer).
It has to be stressed that the Court of Appeal has simply decided that the committal proceedings can proceed. There have been no findings of fact.
WHAT MR ROMAINE SAID IN REPLY TO PART 18 QUESTIONS
The first and most obvious factual issue in this case is the major discrepancy between answers given to Part 18 requests and Mr Romaine’s own Facebook pages. Also note that both of these documents contained “electronic signatures”. There may well be an interesting issue at the committal hearing itself as to how these documents came to be signed.
Responses to Part 18 questions
By way of a Part 18 Request for Further Information, the solicitors for LBMEL asked the Respondent a number of questions regarding these activities, in particular whether he was or had been a professional singer, whether he played an instrument, whether he performed with a live band and, if so, the frequency with which he practiced.
“18. It is noted that in the Claimant’s medical records, entry dated 2012, it states that the Claimant is a professional singer with a band. Please could the Claimant confirm if he is/was a professional singer:
Response: I was never and have never been a professional singer. I worked for different companies for a living. The mention of a professional singer came about when visiting the doctor for a throat infection I mentioned that I couldn’t sing anymore. He must have made the assumption that I sang professionally and documented this in my medical records but this is not the case.
19. Does the Claimant play an instrument;
Response: I used to play the Acoustic Guitar for soft music when I was about 19 years old. I sometimes do this on a very rare occasion now and again but it is not noisy by any means.
20. Does the Claimant perform with a live band;
21. How often does the Claimant practice;
“STATEMENT OF TRUTH
I the Claimant believe that the facts stated in this statement are true.
Full name: Mr David Romaine
[electronic signature of David Michael Romaine]
“6. I do not ride a motorcycle, nor do I participate in or attend motorcross or motorsport events.
7. I understand it has been noted in my GP records that I am a professional singer. This is incorrect as I have never been a professional singer. I believe the mention of a professional singer came about when visiting the doctor for a throat infection and I mentioned that I could not sing anymore. The doctor must have made the assumption that I sang professionally and documented this in my medical records. I used to play the acoustic guitar playing soft music when I was about 19 years old. I sometime do this on a very occasion now and again but it not noisy by any means.
8. To the best of my knowledge I do not participate in any other pastime, hobby or activity, which may have contributed to any hearing difficulty or medical issues relating to hearing loss or tinnitus.”
WHAT THE INSURER FOUND OUT (SIMPLY BY SEARCHING FACEBOOK)
The insurer did not have to work very hard to find out that the Part 18 replies were untrue. Simply turning to Mr Romaine’s own Facebook page.
In the light of the discrepancies between the Claimant’s medical records and the Claimant’s account, the Appellant’s solicitors commissioned an intelligence report on the Respondent. The findings of that report are contained in the witness statement of Mr Lee Kay dated 16th February 2017. Mr Kay conducted searches on the Claimant’s Facebook page which revealed the following:
(1) The Respondent had ridden motorcycles;
(2) The Respondent had an interest in fast motorcycles, fast cars and guitars;
(3) The Respondent performed in a live rock-and-roll band called the “501’s”;
(4) The Respondent played an electric guitar when performing with the live band and was the lead singer;
(5) The Respondent’s live band advertised its services to perform at venues;
(6) The Respondent’s live band performed regularly both at pubs, clubs and larger events;
(7) The Respondent rehearsed regularly.
Mr Kay’s researches also revealed that the Respondent’s band has its own website “501’s@501sRocking”. The website contained numerous still images and video clips of the band and their live performances. The website contained a logo and legend reading “501’s Rock n Roll Live Band” with a phone number for bookings and contained the following details:
“The 501’s are a three piece rock n roll and rockabilly band.
Two of them met through their passion of 50’s rock n roll and the music of that time.
Initially the 501’s lead guitarist and vocalist David Romaine started out as a soloist and eventually joined a folk band where he played the big pubs and clubs all over the midlands. He shared the stages with the likes of Jasper Carrot and The Slade, but after a long time away from the music scene he came back with a new formed affection for rock n roll and rockabilly.
Alongside Dave Hawkins who had also had a long standing love affair with the 50’s decided to learn the double bass. After some time of jamming in few music rooms the 2 became more and the 501’s began to gig regularly on the rock n roll scene.”
It appeared, therefore, to the Appellant insurers that the Respondent’s account – that he had no hobbies or activities which were potential sources of noise exposure – was untrue.
WHAT MR ROMAINE SAID ABOUT THE EVIDENCE GATHERING PROCESS
Again this may become more relevant at the substantive hearing. There is an endorsement by the Court of Approval of a submission that an electronic signature is sufficient to validate a document.
21. There remains a substantial issue between the claimant and the defendant about whether the allegedly false statements were knowingly made by the defendant. The claimant’s submissions based on the Civil Procedure Rules, that an electronic signature is sufficient to validate a document as belonging to its apparent author, are clearly correct. However, the defendant denies in his witness statement dated 8 November 2017 that the signature is his and says that it was inserted into the document without his instructions. Further, he states that he did not see the statement or Part 18 replies before they were served. Whether this is right or not, I do not seek to determine at this permission stage. However, it will be for the claimant to prove to the criminal standard of proof that he, the defendant, was expressly confirming the truth of the contents of the documents. This does not detract from my assessment that the evidence against the defendant establishes a good prima facie case but it remains a significant factor.
The Respondent relied upon his statement filed for his appeal under paragraph 19 of CPR PD 52 in which he stated as follows: (i) His involvement came about as a result of a ‘cold call’ from personal injury claim solicitors, Messrs Asons, specialists in hearing loss claims, who conducted a hearing test at his home and said he may have a claim in view of his engineering background. (ii) He was subsequently informed by Asons that they would lodge a claim of between £1,000 and £5,000 on his behalf and they would do the paperwork which he understood would be ‘generic’. (iii) At no stage did he sign a statement of truth or see the Part 18 responses which contained an electronic signature which had been applied by Asons. (iv) He felt he had been a victim of a claims management scheme to make money from his hearing loss predicament. (v) Both Asons and Coops Law (which took over his claim) were the subject of interventions by the Solicitors Regulatory Authority (on 29th March 2017 and 23rd June 2017 respectively). (vi) Apart from Asons’s first visit, he never met or was interviewed by any legal representative of either Asons or Coops Law; any conversations were by phone. (vii) He is now 69 years-old and has been undergoing chemotherapy for bladder cancer and has responsibilities for a foster-child. (viii) He discontinued the claim on 21st March 2017 without taking legal advice which, with hindsight, may not have been the right thing to do.
WHAT THE COURT OF APPEAL SAID ABOUT COMMITTAL PROCEEDINGS
There is no need for a warning
The court distinguished this case from other cases where a warning was held to be relevant.
The present case is, however, quite different. It concerns an alleged contemnor who himself commenced the claim. The chronology is important. The Defendant issued the claim on 17th November 2015 and sought to back it up with an allegedly false witness statement dated 27th June and Part 18 responses dated 13th June 2016 (see above), each of which were verified with a standard “Statement of Truth”. Whilst the Appellant insurers were able to raise Part 18 questions about the claim in the light of discrepancies with the medical records which they had obtained, it would not have been reasonable to have expected them to have given the Respondent any warnings about contempt at that early stage. It was only later, after the Appellant’s investigator, Mr Kay, had presented his report dated 5th September 2017 with his discovery that the Defendant’s claim and assertions were demonstrably false, that the picture was clear and there was scope for any warning. By this time, however, the die was already cast. The Appellant, thereafter, served Mr Kay’s evidence upon the Respondent with notice that they would pursue him for fundamental dishonesty.
In practice, the absence of a warning is unlikely to be of any relevance where the alleged contemnor is himself the claimant in an underlying personal injury claim (such as the present case) and where the allegedly false statements are contained in claims documents prepared by himself or his solicitors and signed with a “Statement of Truth”. Whilst the CPR do not provide (or allow) for a penal notice to be attached to a “Statement of Truth”, it is difficult to conceive of circumstances where a claimant can be heard to say that he was prejudiced by the absence of warning about the risks of contempt proceedings if he, himself, has been responsible for bringing a fraudulent claim.
Discontinuance of a dishonest claim may have no relevance
The fact that a claimant or applicant discontinues proceedings or an application immediately or shortly after being confronted with evidence or an accusation of falsity is likely to be a relevant factor to be taken into account in most cases. This is because the claimant who discontinues immediately upon realising that ‘the game is up’ is naturally, and appropriately, to be contrasted with the claimant who contumaciously presses on nevertheless, wasting everyone’s time and costs in the process. However, the analysis goes deeper than this. The stratagem of early discontinuance should not be seen to be used by unscrupulous claimants or lawyers as an inviolable means of protecting themselves from the consequences of their dishonest conduct. It is clear that the modus operandi of some of those involved in fraudulent insurance claims has been to issue tranches of deliberately low-value claims (sometimes on an industrial scale) for e.g. whiplash, slips and trips etc and when confronted with resistance or evidence of falsity, simply then to drop those particular claims, in anticipation that it would probably not be worth the candle for insurers to pursue the matter further, particularly since recovery of costs can itself be time-consuming and costly and nominal claimants may be impecunious. The problem has become even more acute in recent times because of one-way cost shifting (“QOCS”) and the costs of proving “fundamental dishonesty” under CPR 44.16 (and c.f. section 57 of Criminal Justice and Court Act 2015).
Thus, whilst the Judge was right to observe that early discontinuance was not a “bar” to permission to bring committal proceedings, in my view, he erred because he should also have had regard to the very real mischief that the stratagem of early discontinuance represents in this arena as one of the tactics of unscrupulous claimants and lawyers who engage in the practice of low-value wide-scale insurance fraud, particularly in the field of e.g. NIHL claims.
It is axiomatic that the court should be astute to protect the court processes being used as an instrument of, or aid to, fraud in any way. Further, false statements in court documents are public wrongs which offend the proper administration of justice. They are not necessarily addressed by a private remedy, such as costs. They should, in appropriate cases, be marked by the public remedy of committal proceedings.