LYING IN A WITNESS STATEMENTS PASSES THE CUSTODY THRESHOLD: WHEN A PARTY ASSERTED THEY DID NOT KNOW A WITNESS

In Axa Insurance UK Plc v Reid (Rev 1) [2021] EWHC 993 (QB) Mrs Justice Eady found that telling lies in a witness statement in a personal injury case passed the custody threshold.  A claimant in a personal injury, who stated that he did know a witness in the action,  was sent to prison.

“Because this form of contempt of court undermines the administration of justice, it is always serious, even if the falsity of the relevant statement is identified at an early stage and does not in the end affect the outcome of the litigation. The fact that only a comparatively modest sum is claimed in the proceedings in which the false statement is made does not remove the seriousness of the contempt.”

THE CASE

The insurer (the claimant in this action) brought proceedings for contempt of court alleging that the defendant (the claimant in the original action) had told lies in a witness statement he had prepared when he brought an action for personal injury.

THE NATURE OF THE LIE

The claimant signed a statement stating that he did not know someone who gave evidence as a witness to the accident. In fact the claimant knew this witness very well.

1. 1. On 13 June 2019, the defendant served his witness statement in the county court proceedings, which contained a statement of truth in the format complying with the relevant court rules, as follows:

“I believe that the facts stated in this witness statement are true.”

1. 1. In fact, as the defendant has acknowledged in these proceedings, his witness statement contained statements of fact that were untrue in such a way that the untruth interfered with the course of justice in a material respect, and were made in the defendant’s knowledge that they were untrue.

1. 1. As Mr Sampson explains, those acting for the claimant carried out various investigations relating to the defendant which drew to their attention that his statement contained matters that were untrue; specifically, that the accident had been witnessed by a Mr Summers (who provided a statement for the defendant in the county court proceedings), someone the defendant had not previously met and did not know. In fact Mr Summers and the defendant were known to each other, as had been stated in an article published on the online version of the East Anglian Daily Times on 25 September 2017 (just over four months before the road traffic accident):

“Alex Reid will be in Ipswich on October 8 giving an MMA masterclass raising money for the Cystic Fibrosis Trust. The event, at Pipers Vale gymnastics club from 1pm on Sunday, October 8, has been organised by former European and world kickboxing champion Darren Summers, whose 16-year-old and seven year-old children have the condition. “He trained me for my first cage fight which I won in the first round” said Mr Summers. “We wanted to do something for the Trust and this is our first event. You don’t have to be involved in martial arts to come along, it is for anyone of any age from any walk of life. Alex will also be talking about fitness, how to maintain your weight and what to eat and will be answering questions afterwards too.”

1. 1. As the claimant has observed, it is plain the defendant knew Mr Summers, and they were more than passing acquaintances. By his witness statement in the county court proceedings, however, the defendant falsely represented that Mr Summers was an independent witness to the collision, when he was not. This was, as the defendant now acknowledges, no mere slip; the defendant went as far as saying that the witness might have recognised him, but he had not seen the witness before (thereby attempting to head off the potential suspicion of the two being acquainted, the defendant having been a professional fighter, and Mr Summers claiming to be looking for a martial arts shop when he allegedly witnessed the collision).

1. In the light of this information, by application of 26 September 2019, the claimant applied to amend the defence in the county court proceedings to plead an allegation of fundamental dishonesty. This application was due to be heard at 10am 23 October 2019 but, at shortly after 6pm the evening before, the defendant served a notice of discontinuance of his claim.

THE GRAVITY OF DISHONESTY IN WITNESS STATEMENTS

The judge set out the significance of dishonest witness statements.

1. 1. As the claimant has submitted, the contempt in this case amounts to a plain, deliberate, and dishonest attempt to interfere with the administration of justice in a material way. The lie told by the defendant was designed to set Mr Summers up in the eyes of the claimant insurance company, and the court, as someone upon whose evidence they could rely as being unconnected to the parties, offering an independent account of the circumstances of the collision. Inevitably, considerable weight is often given to such evidence (in particular where the parties themselves are at odds as to how a collision took place). That is true of a court, where a judge has to adjudicate between two diametrically opposed accounts, but will equally be the case of an insurer that adopts the entirely responsible approach that contested litigation should be the last resort. The false statement was designed to bolster the defendant’s chances of proving his claim on liability (or making the claimant insurer accept his version over that of their own insured, who did not have an independent witness), and thereby of recovering some or all of his claim for damages.

1. 1. Whilst this might not have been the most significant claim, and the defendant did not in the end benefit from his dishonesty, harm in this context is a matter that goes far beyond the particular case pursued by the defendant. The seriousness of the defendant’s contempt in this regard is underlined by the observations made by Mr Thornton in his statement in these proceedings, explaining that there is a very real problem of insurers being seen as an “easy target” by litigants who are prepared to try to secure financial advantage through deception, there being a false perception that such dishonest claims are essentially victimless crimes and that litigation is a game where presenting false evidence carries little risk. Of course, none of that is true and there is a very real cost to honest insurance customers in terms of the higher premiums that they then face or because of the additional investigations that have to be undertaken when they make a genuine claim. The Association of British Insurers reported that in 2018 there were some 98,000 fraudulent claims (excluding fraudulent claims for cover), of which motor insurance scams were the most common and the most expensive (some 55,000 dishonest claims, worth £629 million, being detected in 2018).

1. 1. The serious consequences of such fraudulent claims should be obvious and have been the subject of observations by courts in previous cases (see, for example, Liverpool Victoria Insurance Company v Bashir and ors [2021] EWHC 895 (Admin)). The point is well made in the Judgment of Moses LJ in South Wales Fire and Service v Smith [2011] EWHC 1749 (Admin) (subsequently cited with approval by the Supreme Court in Summers v Fairclough Homes Ltd [2012] UKSC 26, see paragraphs 57-58) :

“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.

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 advisors 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.

7. But the prevalence of such temptation and of those who succumb to that temptation is such that nothing else but such severe condemnation is likely to suffice.”

1. 1. In Liverpool Victoria v Khan, the Court of Appeal specifically addressed the making of a false statement, verified by a statement of truth, in court proceedings, making clear the approach the courts will adopt in such cases:

“59 … the deliberate or reckless making of a false statement in a document verified by a statement of truth will usually be so inherently serious that nothing other than an order for committal to prison will be sufficient. That is so whether the contemnor is a claimant seeking to support a spurious or exaggerated claim, a lay witness seeking to provide evidence in support of a claim, or an expert witness putting forward an opinion without an honest belief in its truth. …

60 Because this form of contempt of court undermines the administration of justice, it is always serious, even if the falsity of the relevant statement is identified at an early stage and does not in the end affect the outcome of the litigation. The fact that only a comparatively modest sum is claimed in the proceedings in which the false statement is made does not remove the seriousness of the contempt.”

1. 1. As for culpability, the defendant must be held responsible for his own statement in the county court claim he chose to pursue. Although, in his statement for this hearing, he has suggested that the dishonesty was not his idea, he was under no pressure to lie and was plainly the person who stood to gain most from doing so; this was a deliberate falsehood from which the defendant stood to make personal financial gain.

1. This is a case involving both a high level of culpability and significant harm; as the defendant rightly accepts, it clearly passes the custody threshold. Given the gravity of the defendant’s actions, I consider the appropriate starting point in this case to be four months imprisonment. In order to determine the end point, however, I need now to consider the aggravating and mitigating features in this case, the appropriate reduction for the defendant’s early admission and the question of suspension.

THE SENTENCE

Because of various matters in mitigation, the impact of coronavirus,  and personal factors the defendant the defendant was sentenced to 8 weeks in prison.