CONTEMPT OF COURT, THE STATEMENT OF TRUTH AND THE CRIMINAL STANDARD OF PROOF: HIGH COURT DECISION FINDS CLAIMANTS IN CONTEMPT OF COURT

In Zurich Insurance Plc v Barnicoat & Anor [2020] EWHC 3127 (QB)  David Lock (QC) sitting as a Judge of the High Court considered the difficulties a party seeking an order for contempt of court faces when they do not call first-hand evidence.   He rejected an argument that the evidence established, to the criminal standard, that an accident had not occurred. However he found that the requisite standard was met in relation to the respondents’ exaggeration of their injuries.

“…. there must come a time when the accumulation of contradictory or obviously incredible pieces of evidence builds a case which is sufficiently clear that I can be satisfied so that I am sure on each of the elements required to prove Zurich’s case.”

THE CASE

The Respondents to this application for a finding of contempt of court had been claimants in a personal injury action. They had alleged they had been injured falling down a manhole.   Their action went to trial and it failed, they were found to have been fundamentally dishonest.   Zurich, the defendant’s insurer in the original action, brought proceedings for contempt of court.

 

THE STATEMENTS OF TRUTH IN THE ORIGINAL PERSONAL INJURY ACTION

The judgment sets out the the details of the original personal injury action.
    1. In summary, the Claimants in the Proceedings alleged that they were injured as a result of falling into a manhole which was located on a footpath on land managed by CHL. The Claimants alleged that, shortly after midnight, they were walking together along the footpath on the way back to Mr Barnicoat’s flat after posting a letter when they were both injured. The incident has been described in a variety of different ways but the main features were that they alleged that Mr Craze had fallen into the manhole which was open, and he had dragged down Mr Barnicoat as he fell. Their case was that the cover of the manhole cover had been missing at the time and that the open manhole was thus a danger for anyone using the footpath.
    2. Zurich were CHL’s insurers and were thus required to fund the defence of this claim and, if the claim was compromised or was proved at court, would have been required to pay any damages awarded to Mr Barnicoat or Mr Craze. CHL defended the Proceedings on the basis that, whilst they admitted CHL were in breach of duty in failing to ensure that cover was maintained over the manhole, the Claimants were acting dishonestly in bringing the claim because, in summary, the accident had never happened. CHL’s case was that this was a fraudulent claim because neither Mr Barnicoat nor Mr Craze had fallen accidentally into the manhole as they claimed and neither of them suffered any of the injuries they claimed.
    3. Mr Barnicoat and Mr Craze both prepared witness statements for the Proceedings which described their account of the material events and described their injuries. They both attended appointments with Mr IP Stewart, a consultant in Accident and Emergency Medicine, who produced reports dated 8 May 2014 relating to Mr Barnicoat and 2nd November 2015 relating to Mr Craze. The details of their injuries set out in Mr Stewart’s reports are incorporated into the Particulars of Claim
    4. The Particulars of Claim were dated 3 June 2016 and were signed by both Mr Barnicoat and Mr Craze as follows:
“Statement of Truth
I believe that the facts stated in these particulars of claim are true”
  1. Both Mr Barnicoat and Mr Craze signed witness statements dated 23 February 2017, and both contain a Statement of Truth. Their account of events was supported by a witness statement sworn by, Mr Patrick Doyle, who claimed to have observed the accident.

THE EVIDENCE IN THE CONTEMPT OF COURT PROCEEDINGS

The judge then considered the evidence adduced in the application before him. No first-hand evidence was produced, simply the witness statement of a Chartered Legal Executive who exhibited the relevant documents to her statement.

The evidence
    1. The only evidence relied upon by Zurich to support its case was a witness statement from Angela Byrne, a Chartered Legal Executive employed by Zurich’s solicitors. Ms Byrne exhibits all the relevant documents including the transcript of the trial before the District Judge. Ms Byrne does not give evidence in person because she has no personal knowledge of the circumstances of the accident.
    2. Zurich’s case is that the material available to this Court, which is the same material which was available to the District Judge plus the transcript of the evidence and the judgment of the District Judge, is sufficient to prove each ground to the criminal standard. However, in coming to this material I am in a significantly worse position than the District Judge because she had the benefit of hearing Mr Barnicoat and Mr Craze giving live evidence before her. She also had the benefit of hearing live evidence from Mr Buscombe and PC Thomas.
    3. Mr McCann invites me to reach conclusions, which he accepts he has to prove to the criminal standard, based on the written material. However, it seems to me that there are a series of inherent difficulties in approaching the case in this way, particularly bearing in mind the need to prove the case to a criminal standard. Those difficulties are as follows:
i) First, these events happen 7 years ago and there was a period of 4 years between the material events and the trial before the District Judge. That passage of time inevitably means that it is more difficult to be confident about what did and did not happen on the night of 13 February 2013;

ii) Secondly, discrepancies about the precise details about how an accident happened do not, of themselves, prove that anyone is being dishonest. Honest witnesses recall events with different details and often in a different sequence. Memories do not operate perfectly and the litigation process itself can distort people’s memories, as Leggatt J observed in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 and HHJ Pearce explained in AB v Pro-Nation Ltd [2016] EWHC 1022 (QB);

iii) Thirdly, there is evidence that Mr Barnicoat and Mr Craze had been drinking considerable quantities of alcohol on the day in question. The evidence from PC Thomas both men were “heavily intoxicated and possibly drunk”. That evidence may well justify a finding that neither Mr Barnicoat nor Mr Craze were reliable witnesses concerning the relevant events. However, the fact that they were both heavily intoxicated may also, at least in part, explain their difficulty in giving a coherent account as to what happened. Accordingly, any inconsistencies and discrepancies in their evidence could be equally referable to their intoxicated state as they could be referable to a deliberate attempt to obtain damages by being dishonest; and

iv) The fact that the District Judge expressed her views using forcible words on whether Mr Barnicoat and Mr Craze were being truthful when trying a civil case to a civil standard of proof, is of some persuasive value but is not binding on me. I do not consider that I am entitled to reach the view that either Mr Barnicoat or Mr Craze was totally dishonest based upon the findings of the District Judge alone, despite her clear conclusions that these men were putting forward a dishonest claim. It seems to me more important to attempt to understand why the District Judge reach this clear view in order to see whether I can follow her along the same path.

    1. Having said all that, I accept Mr McCann’s submission that there must come a time when the accumulation of contradictory or obviously incredible pieces of evidence builds a case which is sufficiently clear that I can be satisfied so that I am sure on each of the elements required to prove Zurich’s case.
    2. I have carefully considered all of the documents and the evidence given by all the witnesses before the District Judge. It seems to me that there are a large number of pieces of evidence which support Zurich’s case that this accident either did not happen at all or did not happen in the manner described by Mr Barnicoat and Mr Craze, if it happened at all:
i) First, the evidence was that Mr Barnicoat and Mr Craze had left Mr Barnicoat’s house at 18 Old Market Place, Bodmin to walk the short distance to post a letter. However, for reasons which were never explained, Mr Barnicoat and Mr Craze assert that they took a different and longer route on their way back to Mr Barnicoat’s flat. Mr Barnicoat was disabled and found walking difficult, and that means that taking a longer route in the middle of the night is particularly inexplicable. When he was asked about this, his only response to the question as to why he, as a disabled man, took a longer route was that there was “no law against it”. Whilst that is true, it is not an explanation as to why he chose a longer route on the way home;

ii) Secondly, although this supposedly accident happened in the middle of the night, Mr Buscombe confirmed that there was “good street lighting plus 1 unrestricted light across the road from the incident“. Further, Mr Barnicoat accepted when he was giving evidence that he was aware of the manhole and the problems with a detached manhole cover prior to the accident. Mr Barnicoat thus claimed that he fell into a manhole in an area which he knew well and was near to his flat and which he knew was uncovered. He also claimed to have done so at a time when there was good street lighting and thus the manhole ought to have been obvious to him. Whilst it is not impossible for someone to make that mistake when intoxicated, given all the circumstances it is somewhat unlikely that Mr Barnicoat stumbled into the known manhole without a thought;

iii) Thirdly, PC Thomas confirmed that the manhole was 2 feet deep and the bottom was covered in a layer of dirt and silt. Mr Craze later complained that his trainers were covered with mud. However, in contrast, PC Thomas said that “It [the floor of the manhole cover] had not been disturbed and I formed the opinion that these 2 persons could not have fallen down the drain as they had alleged“. The account of the accident given by both Mr Barnicoat and Mr Craze was that Mr Craze had stepped right into the manhole. It seems highly unlikely that this could have happened in the way Mr Barnicoat and Mr Craze described if the layer of dirt and silt had not been disturbed as reported by PC Thomas;

iv) Fourthly, Mr Craze claimed that he injured his right leg when it went into the manhole. However, for the reasons which were explored in the evidence before the District Judge, that simply cannot be correct. He says he was walking on the pavement and the manhole was at the far left hand edge of the pavement, and substantially into the grassy area. It is almost impossible to envisage how the accident could have happened in the way Mr Craze alleged if his right leg was involved;

v) Fifthly, Mr Craze claimed to have been knocked unconscious in this incident and to have remained unconscious for 30 minutes. However, this cannot have been correct because the ambulance call was made by Mr Doyle very soon after the alleged incident at 1.06am and Mr Buscombe was on the scene within 3 minutes at 1.09am. His notes say “? KO”. It therefore simply cannot have been the case that Mr Craze was unconscious for any extended period. When questioned about this, Mr Craze came very close to admitting that when he was asked about the discrepancy between his account and that of the ambulance staff;

vi) Sixthly, both the paramedic and the police officer attending the scene quickly came to the opinion that, at the lowest, the account of events given by Mr Barnicoat and Mr Craze was suspicious and, in the case of PC Thomas, he formed the view that this was a staged accident to support a compensation claim and reported as such on the night;

vii) Seventhly, Mr Barnicoat claimed that his right arm was injured in the accident and produced a photograph of the arm. However, as the District Judge noted, he had a significant tattoo on his left arm and the photograph showed the tattoo on his left arm. However, whichever arm was supposed to have been injured, this was not an injury that was noted by the paramedic at the time he attended the scene. He cannot have injured his right arm;

viii) Eightly, Mr Craze reported scars on his shins as a result of this incident to Dr Stewart who reported on his injuries over a year later and reported this in the Particulars of Claim. No abrasions were noted by Mr Buscombe when he attended that night. It is simply not believable that, if Mr Craze had lacerations and bleeding on his legs from this incident, these injuries would have been entirely missed by the paramedic, particularly as he says he was wearing shorts. Further, when Mr Craze was asked about this discrepancy in cross examination he was not able to offer any explanation other than that he had taken his trousers down to show the injuries but Mr Buscombe had not noted them;

ix) Ninthly, the ambulance was called by Mr Doyle from a telephone box that was some way away from the scene at 144 St Mary’s Road. That seems very strange as Mr Doyle admitted that he had a mobile phone. However, he also reported that the men had “blood on faces” which is something that he accepted he cannot have known and thus, at the very least, was exaggerating the injuries suffered by his friends;

x) Lastly, neither Mr Barnicoat nor Mr Craze had any real explanation of the incident in the public house reported to Mr Nosworthy. It was put to Mr Barnicoat that he had joked with Mr Craze about making a fraudulent claim and, instead of denying it, Mr Barnicoat just said it was “banter” and “gossip talk”. However, it hard to see how that is a proper answer if they had thought that they were making a genuine claim as opposed to a fraudulent one.

    1. There are a series of other discrepancies that were put to me by counsel but the ones I have listed above are more than sufficient to explain why the District Judge came to the clear view that she did. It seems to me that this evidence demonstrates to a criminal standard that the injuries claimed by Mr Barnicoat and Mr Craze in these proceedings as set out in Grounds 2 and 3 cannot have arisen as a result of the incident described by Mr Barnicoat and Mr Craze. I accept Mr McCann’s submission that the injuries described by Mr Barnicoat and Mr Craze are so inconsistent with the observations of Mr Buscombe and are so inconsistent with the way that this incident was described by Mr Barnicoat and Mr Craze that neither of these men can have suffered the injuries they claimed as a result of claimed incident. I accept that the evidence establishes that this is established to the criminal standard and thus I find that Zurich has proved its case under grounds 2 and 3.
    2. It is more difficult to decide whether the evidence is sufficient to establish to the criminal standard that Mr Barnicoat and Mr Craze conspired from the outset to fabricate a claim or whether, whilst drunkenly making their way back to the flat after posting the letter, Mr Craze tripped up in the vicinity of the manhole and caused the observed small abrasion to his right lip as a result.
    3. Zurich put is case squarely on the basis that there was no accident at all and that this was all staged and thus was premeditated. Paragraph 13 of the Grounds states:
“There was no accident as alleged”
    1. The case was not put on the basis that Mr Barnicoat may have been involved in an accident involving the manhole, but had seriously misrepresented both its seriousness and its consequences. There was, of course, no independent evidence from CCTV or any other source to assist in understanding what had happened or to explain how the very minor injuries observed by the paramedic had arisen. I do not accept that Mr Doyle’s evidence can be classed as being “independent”. There are numerous problems with accepting his evidence, as set out above and in the judgment of the District Judge.
    2. With considerable reluctance, I have concluded that the evidence that Zurich has been able to lead does not go far enough to demonstrate to the criminal standard that Mr Craze did not have any form of incident involving the manhole on that evening. I also cannot be satisfied so I am sure that any stumble involving Mr Craze may not also have had the effect of bringing Mr Barnicoat to the ground. It seems to me highly unlikely but I cannot say that it is proven beyond reasonable doubt that these men were not involved in any incident in the vicinity of the manhole.
    3. However, I am satisfied that even if there was some form of minor incident involving the manhole, it did not result in either Mr Barnicoat or Mr Craze suffering any form of significant injury and certainly did not lead to the injuries which both Mr Barnicoat and Mr Craze claimed that they had suffered as a result of any incident, as described in the Particulars of Claim. I am satisfied to the criminal standard that, in the aftermath of whatever had led to Mr Barnicoat and Mr Craze finding themselves on the ground, they quickly saw the capacity to use that incident as a way of seeking to make money for themselves by pretending that they had suffered injuries which they knew they had not suffered.
    4. I therefore find that, regardless as to what happened on that night:
i) Both Mr Barnicoat and Mr Craze made false statements about the injuries that they claimed to have sustained, as particularised in Grounds 2 and 3;

ii) That they made those false statements for the purpose of improperly seeking financial compensation from CHL (or in practice their insurers) as damages for injuries that they never sustained;

iii) That when they signed the Particulars of Claim and made witness statements, both Mr Barnicoat and Mr Craze knew that they were telling lies about the alleged injuries, and that they did so in order to seek to persuade CHL to pay them damages for injuries that they never sustained.

    1. It follows from what I have set out above that I accept that Zurich has proved its case under grounds 2 and 3. Those are, as I see matters, the most serious parts of this committal application because, unless the Respondents lied about the injuries they claimed to have suffered, they would not have been in a position to claim any damages. I accept that, whatever may have triggered this event in the first place, Mr Barnicoat and Mr Craze quickly made a deliberate decision to pretend that they had suffered injuries which they could then use to make a compensation claim. Once they had commenced that course of action, they aggravated matters for themselves by lying to the Court in an attempt to secure payment.
    2. The seriousness of the consequence of these findings were outlined by the Court of Appeal in South Wales Fire and Rescue Service v Smith [2011] EWHC Admin 1749 where Moses LJ said:
“5. Those who make such false claims, if caught, should expect to go to prison. There is no other way to underline the gravity of the conduct. There is no other way to deter those who may be tempted to make such claims and there is no other way to improve the administration of justice.
6. The public and advisers must be aware that, however easy it is to make false claims, either in relation to liability or in relation to compensation, if found out the consequences for those tempted to do so will be disastrous. They are almost inevitably in the future going to lead to sentences of imprisonment which will have the knock-on effect that the lives of those tempted to behave in that way, of both themselves and their families, are likely to be ruined.”
    1. The seriousness of giving false evidence in an attempt to obtained damages from a court was also underlined by the late Lord Justice Laws in Lane v Shah [2011] EWHC 2962 (Admin) who said:
“It has been stated and repeated in the cases that this species of contempt is a public wrong and needs to be recognised and published as such. Corrupting the stream of public justice is generally more poisonous than the mere telling of a lie by one man to another. Many would think that the litigant who dishonestly perverts the process of litigation should recover nothing through the courts, even if otherwise her case has some justice. There is much to be said for that point of view”
  1. Whilst I accept that this was only a relatively modest damages claim, it nonetheless involved a serious and extended level of deception. Nonetheless, I do not consider it would be appropriate to sentence Mr Barnicoat and Mr Craze without giving them an opportunity to seek legal advice about the serious situation they find themselves in and, if they are so minded, to apply to the court to purge their contempt.
  2. I hope that Mr Barnicoat and Mr Craze understand that they have been found guilty of contempt of court and that the Court of Appeal have given strong guidance that the consequence of this is that they should expect to go to prison. However, in order to give them an opportunity to make representations about sentence, I will adjourn this case to be heard in open court in the week commencing 14 December 2020 when I shall be sitting in Birmingham. I direct that a copy of this judgment shall be sent by Zurich to both Defendants at their home address and to their former solicitors, C Nicholls of 71 Fore Street, Bodmin, Cornwall PL31 2JB, along with a letter encouraging them to inform their former clients that they would be well advised to seek legal advice and secure representation before this matter comes back to court.
  3. Irrespective as to whether the Respondents attend the adjourned hearing or not, I intend to use that hearing to fix the punishment for the grounds that I have found proven.