EXAGGERATING AND INFLATING CLINICAL NEGLIGENCE CLAIM LED TO CLAIMANT BEING SENTENCED TO SIX MONTHS IMPRISONMENT: “THERE IS NO ROBIN HOOD DEFENCE HERE”

In Calderdale & Huddersfield NHS Foundation Trust v Metcalf [2021] EWHC 611 (QB) Mr Justice Griffiths sentenced a claimant to six months imprisonment following the exaggeration of a claim for damages.

“She was, by her contempt of court, effectively stealing money from the NHS. There is no Robin Hood defence here:”

“Appropriate punishment for faking evidence in support a claim inflated by some £5 million can only be achieved by immediate custody”

THE CASE

The defendant to the committal proceedings  brought a clinical negligence claim. Liability was admitted in that action, however the defendant lied repeatedly in relation to matters relating to quantum.  Her claim was dismissed by consent because of fundamental dishonesty. The Trust brought proceedings for committal.

THE NATURE OF THE LIES

1. 1. Ms Metcalf now admits lying repeatedly between October 2015 when she was assessed by her care expert and 31 January 2019 when she served a Schedule of Loss making claims totalling £5,712,773.40 based upon fraudulent misrepresentations in her pleadings, her witness statements, and in her presentations to experts and others.

1. The lies all had a common theme: exaggeration of her physical disabilities and infirmities, amounting at times to outright invention. She dishonestly and falsely claimed that she could not walk unaided and was dependent upon aids such as a wheelchair, a walking frame or sticks. She also claimed that she was only able to go out socially to places with which she was comfortable and familiar, and took relatively few holidays, and restricted herself to travel which was appropriate to her allegedly reduced mobility. She hid or lied about the fact that she was regularly taking holidays to a variety of places in this country and abroad, in none of which she appeared to have any difficulties with her mobility or to be failing to enjoy herself to the full.

ARGUMENTS THAT DID NOT BENEFIT THE DEFENDANT

1. 1. Ms Metcalf in her affidavits, and particularly the second, tries to play down the level of dishonesty by reference to her motives. In para 9, she says: “I was not thinking about my case in terms of cash value or as a way to obtain wealth or become rich. I saw it in terms of my future care needs…” She says “I did not have a carefully thought out plan for increasing the value of my claim though I recognise that the only outcome of my actions was increase the value of the claim” (para 11). She says that she did not know the value of her claim; was told it was worth less than £1 million, and that “The figures in the final schedule of loss came as a shock to me”.

1. 1. This line of argument is unsustainable and I reject it. The issue is not what Ms Metcalf planned to spend the money on (“my future care needs”); the point is that by lying and acting dishonestly in her presentation to experts, with a view to falsifying the evidential record in her case, she was dishonestly inflating the amount of money she would recover. What she would spend it on is no excuse. She was, by her contempt of court, effectively stealing money from the NHS. There is no Robin Hood defence here: that it was all in a good cause. It was for her own personal benefit and it was money to which she was not entitled, insofar as it was based on a dishonest evidential case.

1. 1. Similarly, whether or not there was a “carefully thought out plan”, this was not a one-off incident, or a temporary loss of judgment on Ms Metcalf’s part. It was a course of conduct which she sustained relentlessly over a period of years. It was not provoked, or done under some sort of pressure, for example out of fear of loss or under threat of punishment. She was not a beleaguered defendant. She was a dishonest claimant.

1. So far as the value of the claim is concerned, whatever figures were cited to Ms Metcalf as an estimate of her final recovery were based on her dishonest presentation of her condition, and her lawyers were duped by that just as much as everyone else. Moreover, when she was told that her (as she knew, dishonestly exaggerated) case justified a Schedule of Loss in the sum of £5,712,773.40, she did not take a step back. On the contrary, she verified the Schedule of Loss with a false Statement of Truth.

THE APPROPRIATE SENTENCE: SIX MONTHS – NOT SUSPENDED

The judge said that the appropriate starting points was 18 months. Various factors were taken into account which reduced the appropriate sentence to six months. There was no basis for suspending the sentence.

1. 1. Giving the fullest possible weight to all of these factors, I will at this point reduce the sentence from 18 months to nine months but, next, I will give credit for Ms Metcalf’s full admissions, made as soon as the contempt proceedings were issued, and bring the sentence of nine months down to six months.

1. 1. Finally, I will consider whether the term of committal can properly be suspended. As suggested in Liverpool Victoria Insurance Co Ltd v Khan and Zafar [2019] 1 WLR 3833 at paras 30 and para 58, the Sentencing Council’s definitive guideline on the imposition of community and custodial sentences is relevant to this, on the basis that “the approach adopted by the criminal courts provides a useful comparison, though not a precise analogy”.

1. 1. I accept that Ms Metcalf will have learned a harsh lesson from this and there is no risk of repetition or other danger to the public. There has been no history of poor compliance with court orders. There is personal mitigation, to which I have given full weight by halving the sentence from the starting point, even before credit for the early admissions, and that includes the impact of an immediate custodial sentence on others.

1. Ultimately, however, I cannot achieve the punishment appropriate to the facts of this case if I suspend the sentence and do not require any part of it to be served in prison. Appropriate punishment for faking evidence in support a claim inflated by some £5 million can only be achieved by immediate custody. I will therefore order the committal for six months to take effect immediately. However, Ms Metcalf will be entitled to automatic release, without conditions, after serving half the term of the committal: Zafar at para 40.