DENTON CONSIDERED: ADDITIONAL ALLEGATIONS MADE IN RELATION TO A SOLICITOR FORGING A WITNESS STATEMENT

January 31, 2018 · by · in Amendment, Applications, Relief from sanctions, Statements of Case

The Denton criteria were considered by Mr Justice Sweeney in  Liverpool Victoria Insurance Company Ltd v Khan & Ors [2018] EWHC 94 (QB). These were considered in an an unusual context. There are allegations (and it must be stressed that these are allegations, nothing has been proven, the substantive action is ongoing) that witness statements had been forged.   These allegations were added relatively late in the proceedings and the defendants asserted that Denton principles applied to the addition. The judge was not impressed (or at least not persuaded) by these arguments and granted the claimant permission to add these new grounds.

THE CASE

The claimant insurance company is bringing an action for contempt of court against four defendants, including a solicitor and a doctor who reported in a personal injury case. The claimant’s case is that the claim was deliberately, and dishonestly, inflated. Permission to bring the proceedings was given in 2016.On the 29th November 2017 the claimant applied to add seven further Grounds.  The application was opposed and one of the defendants (without an application or supporting evidence) made an application to strike out the claim.

 

THE JUDGMENT

The judge set out, in detail, the history of the matter and the allegations being made.  He then reviewed the allegations being made after permission had been granted. The new allegations related to it being alleged that one of the defendants had drafted an inaccurate witness statement, forged a signature and gave an inaccurate statement himself.

“The Additional Grounds

    1. The seven additional Grounds on which the application for permission was made against the 1st Defendant, the first five of which related to the witness statement dated 11 November 2014 in the name of the 2nd Defendant, were as follows:

C1: He drafted a witness statement in the name of the 2nd Defendant which contained a false statement that he knew to be false, namely that “The Claimant attended the office on 22 February 2012 and brought with him a copy of his medical report.”

C2: He drafted a witness statement in the name of the 2nd Defendant which contained a false statement that he knew to be false, namely that “On 24 February 2012 Kamar Khan of Taylor Knight and Wolff solicitors called me advising that he had spoken to the Claimant as he had received an amended medical report and that the Claimant was now happy with the contents and prognosis period in the report…“

C3: He drafted a witness statement in the name of the 2nd Defendant which contained a false statement that he knew to be false, namely that “I confirm that Kamar Khan attended the office on 25 February 2012 and brought the amended medical report of the Claimant with him.“

C4: He drafted a witness statement in the name of the 2nd Defendant which contained a false statement that he knew to be false, namely that “I confirm that the Claimant attended the office on 25 February 2012 and signed confirming that he was happy with the report.“

C5: He forged the signature of the 2nd Defendant on the witness statement.

C6: In his own witness statement, dated 21 January 2015, he made a false statement that he knew to be false, namely that “I refer to the Statement of Shafiq Sultan dated 11 November 2014…“, which was false because Shafiq Sultan was not the maker of the witness statement dated 11 November 2014.

C7: He forged, or caused to be forged, the signatures of Mudassar Iqbal on a witness statement bearing the date 23 April 2013.

    1. The application was supported by witness statements, dated 7, 22 & 28 November 2017, by the Claimant’s solicitor, Mr McCann. In his statement dated 22 November 2017, Mr McCann argued that there was now a strong prima facie case of forgery; that permission should be granted on Grounds C1-C7; and that the Claimant should be permitted to rely on the evidence of Mrs Radley and the further evidence of Mr Iqbal. In his last statement Mr McCann underlined that the Claimant had not been on notice of any problem with signatures until the 2nd Defendant had belatedly shown his hand. Accordingly, Mr McCann’s primary submission was that the Claimant could not be criticised for the late introduction of its evidence in relation to signatures. In particular, he submitted, the Claimant could not, with reasonable diligence, have been expected to obtain the evidence for service in compliance with the Court’s timetabling, it was not a relief from sanctions situation, and the court could avail itself of its more general power to extend time without the need to consider the Denton criteria, and even if the Denton criteria applied, the Claimant’s application should be allowed.

    2. Mr McCann further argued, by analogy with the post judgment cases Ladd v Marshall [1954] 1 WLR 1489 and Singh & others v Habib & AIG [2011] EWCA Civ 599, that the law recognises both the need for parties to bring their cases forward expeditiously and consistent with Court directions; that it would be an affront to justice for a Court to be asked to turn a blind eye to matters that are important to the subject matter in dispute, even if they emerge late; and that the fresh evidence test (i.e. that it could not have been obtained previously with reasonable diligence for use at the trial, that it would probably have an important influence on the outcome of the case, and that is apparently credible) was important because it defined the interface between the two principles.

    3. Nevertheless, Mr McCann argued, if an application for relief from sanctions was required in relation to the service of the evidence of Mrs Radley, the delay of two days was not, viewed in the context in which it arose, significant or serious, and had in any event to be seen against the background that the disclosure of the 2nd Defendant’s evidence was more than 6 months late. Secondly, there was a good reason for the breach, as the time period was too short for the additional steps that the Claimant had to take. Thirdly, given the likely landscape of the litigation, nothing was to be gained by refusing the Claimant permission to deploy.

Summary of the Arguments

    1. On behalf of the Claimant, Mr Higgins relied on the content of Mr McCann’s witness statements in support of the application to add Grounds etc, and variously argued that:

(1) The cause of the late application was the (clearly deliberate) decision of the 2nd Defendant not to break cover in these proceedings until the third week of October 2017.

(2) The Claimant had reacted swiftly and had obtained the evidence that underlay the proposed further Grounds C1-C7.

(3) The evidence in relation to each Ground passed the tests (as correctly identified in HHJ Walden-Smith’s judgments) for permission to be granted.

(4) In particular, although in the past Mr Iqbal’s evidence had been that he had signed the witness statement in his name dated 23 April 2013, his now evidence, that he had not signed it, was supported by both expert and other evidence.

    1. In his Opening Note on behalf of the 1st Defendant, Mr Browne QC emphasised that the 1st Defendant wholly denied each of the allegations set out in proposed Grounds C1 – C7, and explained that the 1st Defendant opposed the Claimant’s application for permission in relation to those Grounds for the following reasons:

(1) The application was made far too late and, if granted, would of necessity result in the adjournment of the Final Hearing – because the oral expert evidence of the handwriting experts would reasonably be required at the adjourned hearing.

(2) It was not possible, consistent with a fair hearing for the 1st Defendant, to grant permission in relation to the new Grounds and then to try them separately from those already before the Court in relation to which permission had been granted – all Grounds had to be heard together at one and the same time.

(3) The proceedings themselves had been ongoing for nearly two years, and the events with which they were concerned had commenced with the accident on 3 December 2011 (some 6 years ago). The case was therefore already very old, any further delay would be wholly inequitable for the 1stDefendant and therefore the hearing must proceed as directed.

(4) None of the expert handwriting reports expressed the view that the author of the disputed signatures was, to the criminal standard, someone other than the 2nd Defendant which, quite independent of the preceding points, was sufficient to dispose of the application – as the Claimant was bound to fail to prove, to the criminal standard, that the 1st Defendant had forged the signatures as alleged.

(5) The 2nd Defendant was a proven liar, who had already been committed to an immediate nine-month custodial term for contempt by O’Farrell J, from whose sentencing remarks it appeared that:

(i) The claim that the 2nd Defendant had brought in that case had been wholly false and dishonest, and had involved a fraud on the grand scale.

(ii) He was well versed in the making of dishonest statements in documents verified by a Statement of Truth.

(iii) He had offered in that case to purge his contempt and to assist the Claimant in this case, which he had now done by lying in the witness statement that he had now given – no doubt in the hope of obtaining a reduced sentence.

(iv) He had sought to allege that the 1st Defendant had made him make and maintain the false claim – but at no point had the 1stDefendant ever been the subject of an application to commit in respect of those assertions, which were scandalous and untrue.

    1. In his oral submissions, Mr Browne underlined that:

(1) If the application was granted, an adjournment would be needed, and that the previous time estimate of six days would be inadequate.

(2) Judge Walden-Smith’s Order, dated 2 March 2017, was that the Claimant must serve any additional evidence by 4pm on 3 April 2017, and the Defence by 4pm on 2 May 2017.

(3) Haddon-Cave J’s Order on 25 October 2017 had permitted the 2nd Defendant to rely on the evidence that he had belatedly put forward.

(4) Mr Iqbal’s affidavit dated 22 November 2017 was therefore made many months out of time and there was no application for an extension of time.

(5) The combined effect of CPR 32.10, CPR 3.9, and the Denton line of cases was that it was incumbent on the Claimant to persuade the Court that it was just to grant relief – which involved consideration of the seriousness of the breach, whether there was a good reason for failure to comply, and the overall justice of the case.

    1. Against that background, and the content of Mr Iqbal’s affidavit and of the exhibits produced in it, Mr Browne submitted that:

(1) It was clear that the Claimant had known about the emails of 26 April 2013 since September 2015 (when Mr Iqbal’s affidavit dated 29 September 2015 was being prepared).

(2) In any event, it might be expected, given that it was the Claimant’s case that Mr Iqbal had been duped into signing his statement and coerced (when he knew that his injuries had been of short duration), that the Claimant would have asked at an early stage whether he was sure that the relevant signatures were his.

(3) As the letter dated 19 April 2017 to the 2nd Defendant’s solicitors made clear, the Claimant knew, by then, about what had been said on the 2ndDefendant’s behalf before O’Farrell J on 14 April 2017, and that should have triggered an enquiry of Mr Iqbal.

(4) If not then, the enquiry should have been made, and evidence obtained and served, shortly after the 2nd Defendant’s statement was served on 23 October 2017.

(5) In the result, there had been serious delay in a case which already involved the most serious allegations; the breach was very serious; there had been no application for relief from sanctions; it was not in the interests of justice to grant relief as to do so would inevitably result in an adjournment.

(6) Therefore, the application for permission in relation to Ground C7 should be refused.

    1. As to Grounds C1 – C6, Mr Browne submitted that, if it was the Claimant’s case that it was the 1st Defendant who had signed the 2nd Defendant’s statement, then an adjournment would be required to enable the 1st Defendant’s handwriting expert to obtain proper handwriting samples and to report in the light of them.

    2. Mr Browne underlined that, before permission could be granted, strong prima facie evidence had to be shown, and submitted that one would therefore expect expert handwriting evidence to the criminal standard that the signature was not that of the purported author, but was made by another – yet there was no such evidence, or anything close to it. He then re-iterated the points made in his Opening Note, and also questioned why, after the service of the Claimant’s evidence in early March 2016, the 2nd Defendant had not immediately said that he was not in the country on 25 February 2012, and had not signed the witness statement in his name dated 11 November 2014, rather than wait until over a year later. It would be wholly unsafe to grant permission in relation to Grounds C1 – C6.

    3. In his Amended Skeleton submissions on behalf of the 2nd Defendant, Mr Naik argued that:

(1) The Claimant had chosen not to obtain its own handwriting expert report in relation to the witness statement dated 14 November 2014, and that the evidence of the 2nd Defendant’s expert Ms Allan was therefore uncontradicted.

(2) In his witness statement dated 22 November 2017 Mr McCann had sought to advance a different case against the 2nd Defendant, namely it was conceded that Ms Allan’s evidence (which was largely agreed with by Ms Barr) supported the 2nd Defendant’s assertion that he did not sign the witness statement, but asserted that that raised the question of whether the signature, if not his own, was one which he had permitted to be signed on his behalf, and to adopt as his own. Thus, it was now the Claimant’s case that they were no longer able to prove that he had signed the witness statement. However, there was no evidence that he had either permitted or adopted it.

(3) By reference to paragraph 16.1 of Practice Direction 81, on an application by the Respondent, or on its own initiative, the court may strike out a committal application if it appears to the court that the application and the evidence served in support of it discloses no reasonable grounds for alleging that the Respondent is guilty of a contempt of court.

(4) The notes to CPR 81.28.1.1 state that the court’s power to strike out may be exercised after as well as before the granting of permission, and that where an application to strike out is made the court is not required to undertake a mini trial or to consider the weight of the evidence. The test is whether the court is satisfied that the evidence in support of the allegation discloses no reasonable grounds for alleging that the 2nd Defendant is guilty of contempt.

(5) HHJ Walden-Smith gave permission in relation to Mr Sultan on the basis that the case against him was heavily dependent on the evidence of Mr Iqbal as contained in his affidavit dated 29 September 2015, but her ability to assess his credibility on paper was very limited.

(6) However, the Claimant’s position was now very different, and as a result the court was required to look at the matter afresh – in which event it was submitted that the evidence disclosed no reasonable grounds for alleging the 2nd Defendant had permitted or adopted the witness statement in his name dated 11 November 2014, and that the application to strike out should therefore be granted.

(7) The application to adduce further evidence in relation to the 2nd Defendant amounted to seeking to adduce extra evidence well out of time in order to continue the proceedings against him on a different basis than that upon which permission was granted – which, in the interest of justice and finality, should be refused.

    1. In his oral submissions, Mr Naik re-iterated aspects of those arguments, as well as submitting, amongst other things, that there was no evidence that the 2nd Defendant had caused anything to be made; that HHJ Walden-Smith had proceeded upon the basis that it was him who had signed the statement; and that it was relevant only to credit that in the EUI case the 2nd Defendant had adopted documents drafted by the now 1st Defendant as his own.

    2. On behalf of the 3rd Defendant, Mr Goldberg QC expressed concern about costs, and (given the issues that had emerged) the adequacy of the 6-day time estimate. He recognised that an allegation of forgery against a solicitor had to be grasped, and that the court would have to decide, one way or another, as to whether there had to be an adjournment. But, he submitted, the case against the 3rd Defendant was in a different department and self-contained, and so (even if an adjournment was ordered in relation to others) the case should continue against the 3rd Defendant alone.

    3. On behalf of the 4th Defendant, Mr King accepted that the four Defendants should be tried together, but stressed that he did not wish for the case to be adjourned.

    4. In reply, as to the Claimant’s application to adduce further evidence, Mr Higgins submitted that reliance on Mr Iqbal was limited to matters that were different to his first affidavit which had been served in time, and was therefore consistent with the practice, under CPR 32.10, of enabling alteration. It was wrong to look at it, via Denton, as some sort of breach requiring relief. As to Mrs Radley’s expert evidence, whilst it had been served 2 days after the closing date set by Haddon-Cave J, and as Mr McCann had argued in his statement dated 22 November 2017, Mr Higgins submitted that a delay of two days did not, in the particular circumstances of this case, amount to a serious and significant breach, there was a good reason for the breach, and it was in the overall interests of justice that the evidence be adduced.

    5. Mr Higgins also relied upon Mr McCann’s submissions in relation to Ladd v Marshall. As to reasonable diligence, prior to April 2017 there had been nothing that reasonably triggered a need to investigate the relevant signatures. What the 2nd Defendant had asserted to O’Farrell J did not reasonably trigger a need to investigate either. Rather, against the background that insurers did not have unlimited funds, it had been appropriate for the Claimant to enquire, in the terms of the letters sent in April and May 2017, as to whether the 2nd Defendant was going put forward a defence in the instant proceedings and, if so, what it was going to be. It was only when the 2nd Defendant had finally served his evidence that further investigation had been reasonably required, and it had been pursued with reasonable diligence.

My reasons

    1. Notwithstanding the necessary length of the outline (above) of the background, it seemed to me that the Claimant’s case on Grounds B1 – B32 & B34 as advanced before HHJ Walden-Smith was relatively straightforward, namely that:

(1) To falsely boost the value of the personal injury claim made by Mr Iqbal, and thereby to obtain a significant costs award by the successful pursuit of the claim, on or about 24 February 2012, the 1st Defendant instigated the creation by the 3rd Defendant of a revised medical report with false content.

(2) The report was duly created, by or on behalf of the 3rd Defendant, on or about 24 February 2012, and knowingly included the false statements alleged against the 3rd Defendant in Grounds B24 – B31.

(3) The revised report of the 3rd Defendant, not his original report, was then disclosed to the now Claimant.

(4) The 4th Defendant gave the game away in the run up to the trial hearing on 14 August 2013 when, by mistake, on 12 August 2013, he served the original report of the 3rd Defendant on the Claimant in the trial bundle, rather than the revised version.

(5) Also on or about 12 August 2013, and on 14 August 2013, the 4th Defendant (in support of the 1st Defendant’s scheme) urged Mr Iqbal to give false evidence in the respects alleged against the 4th Defendant in Ground B23.

(6) After the Court had required an evidential explanation as to what had happened, a number of cover ups were attempted, variously involving the 1st, 2nd and 3rd Defendants, in that:

(i) The 3rd Defendant made a witness statement dated 20 August 2013 (denying any involvement in the creation of the revised report) which, to his knowledge, included the false statement alleged against him in Ground B34.

(ii) The 1st Defendant made a witness statement dated 28 August 2013 (claiming that the instigation for the revised report had come from Mr Iqbal) which, to his knowledge, included the false statements alleged against him in Grounds B1 – B3.

(iii) The 3rd Defendant made a further witness statement dated 22 October (admitting involvement in the creation of the revised report after receipt of a letter from the 1st Defendant dated 22 February 2012 – an electronic copy of which was attached to the statement) which, to his knowledge, included the false statements alleged against him in Grounds B17 – B22.

(iv) The 1st Defendant made a further witness statement dated 4 March 2014 (seeking to explain why and how the electronic version of the letter dated 22 February 2012 produced by the 3rd Defendant had in fact been typed on 28 August 2013) which, to his knowledge, included the false statement alleged against him in Ground B4.

(v) The 2nd Defendant made, or caused to be made, a witness statement dated 11 November 2014 (supportive of the assertions later made by the 1st Defendant in his witness statement dated 21 January 2015) which, to his knowledge, included the false statements alleged against him in Grounds B13 – B16.

(vi) The 1st Defendant made a further witness statement dated 21 January 2015 (producing various documents, and making further assertions as to Mr Iqbal’s conduct and the need for the revision request letter dated 22 February 2012 addressed to the 3rd Defendant) which, to his knowledge, involved making the false statements alleged against him in Grounds B5-B7, B9, B11 & B12, and producing two false file notes (dated 22 February 2012 and 25 February 2012 respectively) as alleged against him in Grounds B8 & B10.

(viii) On 31 January 2016 the 3rd Defendant swore an affidavit (producing, for the first time, a chain of emails dated 24 February 2012 which was said to include the actual request made by the 1st Defendant to the 3rd Defendant for the original report to be revised, and asserting that the alterations had, with the 3rd Defendant’s permission, been made by his secretary, who had sent off the revised report without giving him the opportunity to check it) which, to his knowledge, involved making the false statement alleged against him in Ground B32.

    1. There was no dispute that, in granting permission in relation to Grounds B1-B32 & B34, HHJ Walden-Smith had set out and applied the correct legal tests.

    2. I carefully considered, and ultimately agreed with, the reasoning and conclusions of HHJ Walden- Smith in relation to those Grounds – in particular as to the prima facie credibility of Mr Iqbal’s evidence (notwithstanding the matters and arguments relied upon to his discredit) in view of the support provided to it by other aspects of the evidence, and the application of common sense, the significance of the alleged cover up and its changing nature, and (when all relevant evidence was taken into account) as to the strength of the prima facie case against each of the Defendants on those Grounds.

    3. I also concluded that, in accordance with HHJ Walden-Smith’s Order, the Claimant had served its evidence in relation to those Grounds by 4pm on 3 April 2017.

    4. Equally, on all the evidence, and up to that point, I could see no lack of reasonable diligence in not asking Mr Iqbal to double check his acceptance that he had signed the statement dated 23 April 2013 (albeit that there was evidence that undermined the validity of that date), nor to instruct a handwriting expert – whether in relation to that statement, or the statement in the name of the 2nd Defendant dated 11 November 2014.

    5. Nor, in my view, was there a lack of reasonable diligence after the claim made on behalf of the 2nd Defendant, at the hearing before O’Farrell J on 12 April 2017, that the signature on the statement in his name dated 11 November 2014 was not his. Rather it was, in my view, reasonable for the Claimant to first see whether the claim was going to be pursued in the instant proceedings by compliance with HHJ Walden-Smith’s Order as to Defence service by 4pm on 2 May 2017. Accordingly, it was, in my view, reasonable for the Claimant’s solicitor to pursue the matter in correspondence in the terms of the letters that were sent to the 2nd Defendant’s solicitors in April and May 2017 – rather than immediately embarking on a potential wild goose chase.

    6. That, in my view, remained the position until 19-23 October 2017 and the eventual service, long out of time, by the 2nd Defendant of the evidence upon which he now seeks to rely – in particular, that of the handwriting expert Mrs Allan, which supports his case as to the signature on the statement dated 11 November 2014 in his name.

    7. That did trigger the need for the Claimant to act with reasonable diligence in response. In the result, and albeit that it might have moved a little faster, I concluded that, in all the circumstances as outlined above, the Claimant had done so in relation to its response to the 2nd Defendant’s evidence, and also as to the further enquiries of Mr Iqbal and the obtaining of Mrs Radley’s expert evidence.

    8. To any extent, which I doubted, that reliance on the evidence of Mrs Radley and Mr Iqbal required relief from sanctions, it seemed to me that, in each instance, the arguments advanced (whether directly or implicitly) on behalf of the Claimant had considerable force, and that the answer to each of the Denton questions was favourable to the Claimant – such that relief should be granted.

    9. In granting permission in relation to the proposed Grounds C1 – C7, and taking them in chronological Order, I concluded that:

(1) As to Ground C7, I disagreed with Mr Browne’s submission that expert evidence to the criminal standard was required. The question was whether the combination of all the relevant evidence gave rise to a strong prima facie case to the criminal standard. The evidence of Mr Iqbal was prima facie credible, was supported by the evidence of Mrs Radley, and that evidence (in combination with the other evidence as to the creation and pursuit of the revised report, the emails in April 2013 as to the signing or otherwise of the statement, and the wider evidence) provided a strong prima facie case to the criminal standard against the 1st Defendant – which it was in the public interest, and in accordance with the overriding objective, to grant permission in relation to.

(2) As to Grounds C1-C5, I again disagreed with Mr Browne’s submission that expert evidence to the criminal standard was required. The evidence from the copy emailed to the 2nd Defendant was that the 1st Defendant was the author of the document, and that it was last amended by him. It was first produced by him in his statement dated 21 January 2015 and relied upon by him as being consistent with the account put forward by him in that statement, and included (as with his own statement) statements, as set out in Grounds C1-C4, which the other evidence shows to have been false. Combining all the relevant evidence, there was therefore a strong prima facie inference that the 1st Defendant had both drafted and signed the statement, and that each of the statements in it which was the subject of a ground was, to the 1st Defendant’s knowledge, false. Nor was there anything inconsistent, unfair or unjust, with the pursuit of those Grounds and the pursuit of Grounds B13-B16 (each of which alleges that he “made or caused to be made a false statement”) in the manner now alleged against the 2nd Defendant. In the result, it was in the public interest, and in accordance with the overriding objective, that permission be granted in relation to Grounds C1-C5.

(3) As to Ground C6, there was clear evidence that the 1st Defendant had made the statement dated 21 January 2015 and thus, combined with the evidence in relation to Grounds C1-C5, a strong prima facie that the relevant statement was, to his knowledge, false. Nor was there anything inconsistent, unfair or unjust in its pursuit. In the result, it was in the public interest, and in accordance with the overriding objective, that permission be granted in relation to Ground C6.

  1. As to the 2nd Defendant’s application to strike out, I concluded that (quite apart from the absence of any formal application and supporting evidence) it was self-evident that (notwithstanding the new handwriting evidence which, in any event, did not exclude him from being the author) there was a strong prima facie case against the 2nd Defendant upon the basis now put (the lateness of which was entirely the fault of the 2ndDefendant) and that it remained in the public interest, and in accordance with the overriding objective, for the proceedings against him to continue to a resolution on the evidence.

  2. Against the background of the strength of my conclusions in relation to the 1st and 2nd Defendants, I next considered whether or not to grant an adjournment. I concluded that no other course was fair or sensible – in particular as insufficient time was available to carry on anyway, and a date in March 2018 was available.

  3. I rejected Mr Goldberg’s suggestion of continuing in relation to the 3rd Defendant alone. Whilst it was convenient for Judge Walden-Smith to deal with the applications for permission in two separate hearings, and although the Grounds are individual, it was in my view self-evident (given the interconnections between them) that it was overwhelmingly in the interests of justice that all the Defendants and all the Grounds be tried in one Final Hearing. The more so as a date in March was available.

  4. Finally, I concluded that it was self-evident that the fairest course as to costs was to order that they be reserved.

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