COMMITTAL PROCEEDINGS CAN BE BROUGHT IN RELATION TO PRE-ACTION WITNESS STATEMENTS: COMMITTAL PROCEEDINGS CAN BE AMENDED TO ALLEGE FALSE STATEMENTS ARE MADE IN THE COURSE OF THOSE PROCEEDINGS
In Jet 2 Holidays Ltd v Hughes & Anor  EWCA Civ 1858 the Court of Appeal held that committal proceedings can be brought in relation to allegedly false witness statements made and disclosed under the pre-action protocols. It is not essential that there be “proceedings” for committal applications to be made. Further the Court also allowed the claimant to amend the proceedings to allow it to rely on – allegedly – false statements made in response to the committal application. It is absolutely clear that a party can bring committal proceedings based on pre-action statements. It is equally clear that it is possible for defendant to committal proceedings to dig a deeper hole for themselves during the course of those proceedings. These are matters that all practitioners need to be aware of when preparing witness statements, even at the pre-action stage.
“A dishonest witness statement served in purported compliance with a PAP is capable of interfering with the due administration of justice for the purposes of engaging the jurisdiction to commit for contempt because PAPs are now an integral and highly important part of litigation architecture.”
The claimant brought proceedings for contempt of court against the defendants. It was alleged that the defendants had signed witness statements alleging they had food poisoning.
THE WITNESS STATEMENTS
Prior to any proceedings being issued the defendants served witness statements, which had a statement of truth, stating that they and their child became ill on holiday and alleging poor hygienic practices at the hotel where they stayed.
OUR OLD FRIEND SOCIAL MEDIA
As we have seen so often before – social media undermined the case in relation to injuries.
“The appellant found various images and comments posted by the respondents on social media during their holiday, including Facebook posts, a YouTube video and two Twitter posts, which indicated that the respondents and their children were physically well during the holiday and had an enjoyable time while staying at the hotel.”
Unsurprisingly the personal injury action went no further.
THE APPLICATION TO COMMIT
The claimant issued applications to commit. The defendants responded and gave evidence that their original witness statements were in fact true.
PERMISSION TO BRING THE COMMITTAL PROCEEDINGS
HHJ Godsmark QC gave permission to the claimant to bring the committal proceedings, based on the witness statements that had been served. prior to proceedings.
THE ISSUE RAISED AT THE CASE MANAGEMENT STAGE
At the case management stage HHJ Owen QC raised the issue of whether it was possible to bring committal proceedings in respect of witness statements that had not been made in any proceedings. The claimants therefore applied to amend to include, in the particulars of committal, the statements that the defendants had made in response to the committal proceedings – arguing that these were equally false.
THE ORIGINAL ORDER: ACTION STRUCK OUT
HHJ Owen QC held that committal proceedings could not be brought because there were no “proceedings” that the witness statements were made in. He refused the claimant’s application for permission to amend to include the statements made in the course of the committal proceedings.
THE CLAIMANT’S SUCCESSFUL APPEAL 1: MAKING PRE-ISSUE WITNESS STATEMENTS
The Court of Appeal held that committal proceedings can be brought in relation to witness statements made before any proceedings are issued.
Aside from his correct finding that the original witness statements were not within CPR 32.14, Judge Owen considered that the alleged false statements in each of the original witness statements, being “a witness statement without a heading or a case number, formulated by potential (perhaps) litigants for the purpose of intimating a claim and clearly in the hope … of either an admission of liability or an offer of settlement” had “but the slimmest and tenuous relationship with the course of justice or the administration of justice, or the notion of justice as a continuing process”.
We do not agree with that conclusion. It is well established that an act may be a contempt of court even though carried out before proceedings have begun. There have been some judicial and academic statements suggesting that conduct is only capable of constituting contempt if it takes place when proceedings are “pending” or “imminent”. That limitation was rejected by the Divisional Court of the Queen’s Bench Division (Watkins and Mann LJJ) in Attorney-General v News Group Newspapers plc  1 QB 110 at 133B and 135C. In that case the Court held that contempt at common law had been constituted by the publication of articles by a national newspaper encouraging the bringing of a private prosecution by the mother of a child against a doctor who the mother, in effect endorsed by the newspaper, alleged was guilty of rape of the child. A private prosecution was brought by the mother several weeks later, but the doctor was acquitted. The Divisional Court said that the articles published by the newspaper posed a real risk of prejudice to a fair trial of the doctor and were intended to do so. In rejecting the argument of the newspaper that it could not be in contempt unless the conduct complained of was carried out when proceedings were either pending or imminent, Watkins LJ, with whom Mann LJ agreed, said at 133D:
“The common law is not a worn out jurisprudence rendered incapable of further development by the ever increasing incursion of Parliamentary legislation. It is a lively body of law capable of adaptation and expansion to meet fresh needs calling for the exertion of the discipline of law.”
“The law of contempt is based upon the broadest of principles, namely, that the courts cannot and will not permit interference with the due administration of justice. Its application is universal. The fact that it is applied in novel circumstances, for example to the punishment of a witness after he had given evidence (Attorney-General v Butterworth  1 QB 696) is not a case of widening its application. It is merely a new example of its application. In that case, as here, the trial judge, Mocatta J, relied upon the fact that there was no such case in the books, but this court held that that was a distinction of fact, not principle: per Donovan LJ at pp. 724-725.”
It is apparent from the correspondence between the parties’ solicitors that they believed they were engaged in complying with the Personal Injury Claims PAP. As Mr Higgins acknowledged in his oral submissions, it would have been more appropriate for them to comply with the Disease and Illness Claims PAP. If the claims were made today, they would presumably fall within the Resolution of Package Travel Claims PAP, which is the most recent PAP but only applies to letters of claim sent on or after 7 May 2018.
The fact that the parties mistakenly proceeded under the wrong PAP does not matter for present purposes. Nor does it matter that neither the Personal Injury Claims PAP nor the Disease and Illness Claims PAP required details of the claim to be set out in a witness statement verified by a statement of truth. It is sufficient that the respondents, in purported compliance with a PAP, set out their claims in a witness statement verified by a statement of truth plainly for the purpose of giving the impression to the appellant of greater weight and conviction to their claims than might otherwise be the case. They used the witness statements to indicate, in accordance with CPR 32.4(1), the oral evidence which they would give in proceedings and the verification of truth gave solemnity to that indication.
CLAIMANT HAD ISSUED IN THE WRONG COURT
The appellant’s application for permission to bring contempt proceedings was made in the Queen’s Bench Division of the High Court. That was not the correct court. CPR 81.13 and (in the case of a false statement of truth or disclosure statement) CPR 81.18 specify the court to which such an application must be made. It is apparent from the wording of CPR 81.13(1)(a) and CPR 81.18(1) that CPR 81.13(1) and CPR 81.18 are, like CPR 32.14, concerned with contempt committed after proceedings have been commenced. Where contempt has been allegedly committed before proceedings have been commenced, the relevant Rule is CPR 81.13(2), which provides that, where contempt of court is committed “otherwise than in connection with any proceedings”, the application for permission may be made only to the Administrative Court. We consider that the alleged contempt in relation to the original witness statements was committed in connection with the proceedings which were implicitly threatened if the respondents’ claims were not satisfied but the words “otherwise than in connection with any proceedings” in CPR 81.13(2) are to be interpreted, consistently with CPR 81.13(1) and 81.18(1), as referring to proceedings which were commenced before the contempt was committed.
Accordingly, strictly, the application for permission in the present case should have been made to the Administrative Court. Para. 16.2 of PD16 provides that the court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect. In the skeleton arguments for the respondents for the hearing before Judge Owen on 13 November 2018 the point was taken that the application for permission to bring committal proceedings had not been made in the correct court. Judge Owen recorded (in ) that he had indicated during the hearing that the point lacked any merit and the respondents’ counsel had indicated that the point was withdrawn or abandoned. In effect, therefore, Judge Owen exercised his discretion to waive the procedural defect.
It is not satisfactory that false statements made in witness statements served before the commencement of proceedings in purported compliance with a PAP fall outside CPR 32.14. Nor is it satisfactory or convenient that any application for permission to bring contempt proceedings for such false statements must always be made to the Administrative Court pursuant to CPR 81.13(2). It is highly desirable, therefore, that the possibility of contempt in relation to such statements should be expressly addressed in the Civil Procedure Rules and a Practice Direction.
THE JUDGE AT FIRST INSTANCE SHOULD HAVE GIVEN PERMISSION TO AMEND
The Court of Appeal held that the judge should have granted the claimant permission to amend to include the statements made in response to the committal proceedings.
The principal ground on which Judge Owen refused to permit the amendment was that it would be oppressive and contrary to the Overriding Objective in CPR Pt 1 to allow a claim to continue which ought not to have been brought. As we have decided, contrary to the conclusion of Judge Owen, that the court did have jurisdiction to hear the contempt proceedings based on the original witness statements, he made an error of principle in refusing to permit the amendment.
The new witness statements fall within CPR 32.14. They did not simply repeat what had been said in the original witness statements but gave further false evidence in seeking to explain the social media posts. The respondents’ conduct in making the further witness statements, just as much as in making the original witness statements, had to satisfy the stringent requirements for suitability for contempt proceedings. They did so. Those requirements have been described in a number of cases, including in particular the KJM Superbikes case. Most recently, they were explained and applied in Zurich Insurance plc v Romaine  EWCA Civ 851,  1 WLR 5224. Unsurprisingly, in the absence of the respondents on the hearing of this appeal, no issue has been raised before us as to the summary in that case of the relevant considerations for the grant of permission. Some of the conditions in that summary are not applicable to false statements made before the commencement of proceedings, which are then never instituted, as was the position with the respondents’ original witness statements. In relation to the application to amend, however, we are concerned with the respondents’ further witness statements, which, on the appellant’s case, contained further untruths. For the purposes of the present appeal, it is sufficient to say that there is an apparently strong case of contempt in relation to the making of the further witness statements and a clear public interest in the bringing of contempt proceedings in respect of them.
There is a clear public interest for the reasons given by Moore-Bick LJ in the KJM Superbikes case, quoted in para. 44 above. In South Wales Fire and Rescue Service v Smith  EWHC 1749 (Admin), Moses LJ (with whom Dobbs J agreed) also powerfully underlined how seriously the courts regard false claims. He said:
“2. For many years the courts have sought to underline how serious false and lying claims are to the administration of justice. False claims undermine a system whereby those who are injured as a result of the fault of their employer or a defendant, can receive just compensation.
3. They undermine that system in a number of serious ways. They impose upon those liable for such claims the burden of analysis, the burden of searching out those claims which are justified and those claims which are unjustified. They impose a burden upon honest claimants and honest claims, when in response to those claims understandably, those who are liable are required to discern those which are deserving and those which are not.
4. Quite apart from that effect on those involved in such litigation is the effect upon the court. Our system of adversarial justice depends upon openness, upon transparency, and above all upon honesty. The system is seriously damaged by lying claims. It is in those circumstances that the courts have on numerous occasions sought to emphasise how serious it is for someone to make a false claim, either in relation to liability, or in relation to claims for compensation, as a result of liability.”
It is plainly convenient, efficient and cost effective for the allegations of contempt in relation to the further witness statements to be heard and determined in the same proceedings and at the same time as the allegations in relation the original witness statements. That would not give rise to any unfair prejudice to the respondents.
It is not necessary to issue new contempt proceedings every time there is a contempt in or relating to the same set of proceedings. Contempt proceedings are not like litigation between private persons where the claimant seeks a personal remedy against the defendant based on a cause of action which is not barred by limitation of time and which must generally speaking exist before proceedings can be commenced. As Moore-Bick LJ said in the KJM Superbikes case at paras  and  proceedings for contempt of court are public law proceedings, and when the court gives a private person permission to pursue such proceedings against a witness who is alleged to have told lies in a witness statement it allows that person to act in a public rather than a private role, not for the furtherance of that person’s private interests, but rather to pursue the public interest. In any event, even in proceedings where the claimant must establish a cause of action for a personal remedy against the defendant, the court may permit the claimant to amend the proceedings to allege facts necessary to found a cause of action, notwithstanding that they occurred after the claim form was issued, where that would promote the Overriding Objective of enabling the court to deal with the case justly: Maridive and Oil Services (SAE) v CNA Insurance Co (Europe) Ltd  EWCA Civ 369,  CLC 972.