LITIGATION FRIEND GAVE FALSE EVIDENCE AND WAS IN CONTEMPT OF COURT: “GOOD DAYS” DOES NOT EXPLAIN CLAIMANT’S LEADING THEATRICAL ROLES

In Hull University Teaching Hospitals NHS Trust v Colley [2022] EWHC 854 (QB) Mr Justice Bourne sentenced a litigation friend to six months in prison (suspended for two years) for giving false evidence in support of her daughter’s claim for clinical negligence.

“… in any event, I am sure that “good days” is not the true explanation for what is seen in those recordings. The number of performances and, no doubt, rehearsals, supported by the evidence of the teachers, none of whom remembers any difficulty which could have inhibited Megan from performing those roles or indeed from being cast in them in the first place, proves that Megan’s overall state was very different from the descriptions given by her or by Mrs Colley.”

THE CASE

The applicant hospital brought proceedings for contempt of court against the respondent. The respondent had been the litigation friend in a clinical negligence action brought by her daughter. During the course of the action the respondent had made various statements as to the severity of her daughter’s injuries.  The claim was put at £5.4 million.  The action was discontinued shortly before trial.  There was video evidence of the claimant daughter taking part in dance and musical productions at a time when the applicant had said she was severely disabled.

THE HISTORY OF THE MATTER

The judgment sets out the history of the matter.

1. 1. The clinical negligence claim was first listed for trial on 10 October 2018. The trial was adjourned because an expert was unavailable. A trial window from April to July 2019 was then identified. The trial was eventually re-listed to start on 5 March 2020.

1. 1. Meanwhile, in August 2019, Megan’s claim was re-pleaded at a value of £5.4m. Then, on 21 February 2020, eight working days before trial, Notice of Discontinuance was served on her behalf. No explanation was provided, save that this step had been taken against legal advice. Because Megan was in receipt of Legal Aid, the discontinuance prevented the issue of fundamental dishonesty from being determined by the Court.

1. 1. By this committal application, Mrs Colley is alleged to have made various false statements, verified in each case by a statement of truth. CPR 32.14 provides:

“Proceedings for contempt of court may be brought against a person who makes or causes to be made a false statement in a document, prepared in anticipation of or during proceedings and verified by a statement of truth, without an honest belief in its truth. “

1. 1. The Applicant contends that the essence of the allegedly false statements was very substantially to exaggerate Megan’s disability and immobility arising from her hip dysplasia. In particular, Mrs Colley made multiple references to Megan being significantly reliant (though not wholly dependent), upon a wheelchair, and consequently, at school and College, needing special arrangements and the assistance of friends to get around. The Applicant contends that video evidence shows that in fact she has “grossly normal” mobility in terms of walking, using stairs and accessing public transport. Statements from teachers at school and College say that they are unaware of any special arrangements for Megan.

1. 1. Mrs Colley stands by her statements. She says that Megan achieved the mobility which can be seen in the video evidence by increased use of painkillers (Tramadol) and that she has bad days as well as the good days which can be seen in the evidence.

2. In May 2021 the Applicant sought permission to bring these contempt proceedings. The application was heard by Mr Justice William Davis on 23 July 2021, when it was conceded on the Respondent’s behalf that there was a prima facie case and that the public interest requirements were satisfied.

EXAGGERATION OF LEVELS OF DISABILITY

The judge found that several elements of the applicant’s claim had been proven to the criminal standard of proof.

1. 1. The statements which are alleged to have been untrue consist of short extracts from the statements of case and witness statements in the clinical negligence claim. Those documents, as a whole, provide the context for the disputed material.

1. 1. When all the evidence in the clinical negligence claim is considered, it is absolutely clear that Megan, by herself and with the help of Mrs Colley, significantly exaggerated the levels of disability which she was experiencing during the lifetime of the litigation.

1. 1. The most powerful evidence demonstrating this is the video footage of the theatrical performances in 2016 and 2017, together with the evidence of her College teachers in those years. Those performances took place before the time when Mrs Colley now claims that Megan significantly increased her intake of Tramadol.

1. 1. In these multiple performances, preceded no doubt by multiple rehearsals, Megan showed herself to be one of the strongest dancers in her year at College and secured leading roles which involve dancing as well as acting and singing.

1. 1. That makes a nonsense of the case put forward by Megan in the clinical negligence litigation at around that time, e.g. that the movement component of her course was for upper body only, that the courses she was attending were for disabled people, that she avoided dance, that she could not walk for more than a few minutes or that she was heavily reliant on her mother for help with basic daily tasks like dressing or going up and down stairs.

1. 1. Having seen the recordings of the performances in 2016 and 2017, and having read and heard the evidence of Megan’s teachers at college in those years, I am sure that the case being advanced about Megan’s physical capabilities at that time was exaggerated.

1. 1. In particular, I am sure that Mrs Colley gave false statements, and knew that she was doing so, when in her witness statement dated 5 November 2017 she confirmed the accuracy of Amy Dooley’s report. That evidence was false in that Ms Dooley said that Megan “relies on an assistant while at college” and “attends college in her wheelchair. … she has a full-time teaching assistant who pushes the wheelchair”. Those assertions (which, as I said at paragraph 23 above, Mrs Colley in her last witness statement acknowledged having seen at the relevant time) cannot be true, in the light of the footage of Megan acting and dancing, and in the light of the statements of multiple teachers who say that they did not make any arrangements for Megan to use a wheelchair, that she did not have the assistance of a teaching assistant and that she did not need any assistance backstage.

1. 1. For the same reasons I am sure that Mrs Colley knowingly made a false statement in the Schedule of Loss dated 16 March 2018 that Megan “is currently reliant upon the use of a wheelchair when out of the house.” At that time, Megan was “out of the house” at college several days a week and, far from relying on a wheelchair, was securing leading roles and dancing in rehearsals and on stage.

1. 1. I am also sure that Megan put forward a misleading picture in her witness statement of 5 November 2017 when she said that her dance activities at college were “limited to my upper body and head” and that the courses “are for those with a disability”. The evidence of her teachers is, instead, that she was on a physically demanding course in which she was one of the strongest performers. On the same date, Mrs Colley signed a statement in which she confirmed the truth of Megan’s statement. That is not one of the contempt allegations specified in the application. However, it is relevant because it contributes to my certainty that Mrs Colley and Megan were co-operating in the exaggeration of Megan’s claim. That in turn is a key reason for my findings on the application.

1. 1. Each of the teachers accepted, when asked, that they could only comment on Megan’s condition at the times when they actually saw her, and also that they could not necessarily be certain that all of their recollections were correct. Those answers helped to demonstrate that these were honest witnesses, doing their best to assist the Court rather than taking sides. The force of their statements is in their collective effect. None of them believed that Megan made regular use of a wheelchair at college, or struggled with dancing, or was helped by a teaching assistant, or needed any assistance with costume changes or exhibited any distress after performances.

1. 1. The unanimity of that evidence is fortified by the absence of any significant documentary evidence of the difficulties which it was claimed that Megan had. Neither side is really assisted, in my judgment, by the Snapchat video which is only a few seconds long.

1. 1. Ms Jones compared this case to AXA Insurance UK Plc v Rossiter [2013] EWHC 3805 QB There, Stewart J was not satisfied that a Defendant had been dishonest when describing herself as severely disabled in statements which failed to acknowledge that, as surveillance video would later show, her condition was variable. Stewart J cited Ford v GKR Construction (22 October 1999, unreported) in which a claimant had, herself, failed to recognise that there were times when she could do more than she claimed to be able to do, and therefore was found not to have been lying about her capabilities.

1. 1. No doubt there are cases where the facts can be interpreted in that way, but findings of fact in other cases do not really assist me. In this case, even if the dramatic performances in 2016 and 2017 had represented only what Megan could do on “good days”, I consider that statements which painted a picture of very substantial disability on “bad days” and made no reference at all to good days were dishonest. But in any event, I am sure that “good days” is not the true explanation for what is seen in those recordings. The number of performances and, no doubt, rehearsals, supported by the evidence of the teachers, none of whom remembers any difficulty which could have inhibited Megan from performing those roles or indeed from being cast in them in the first place, proves that Megan’s overall state was very different from the descriptions given by her or by Mrs Colley.

1. 1. I therefore find that the statements specified in paragraphs 104-105 above were false and that Mrs Colley knew that they were false when she made them. I am sure that they were knowingly made with a view to increasing the value of Megan’s clinical negligence claim and, to the knowledge of Mrs Colley, they thereby interfered with or if persisted in would have interfered with the course of justice in a material respect.

1. 1. I am not satisfied to the criminal standard that the other statements specified in the application were knowingly false, although it is likely that they were.

1. 1. Mrs Colley’s witness statement of 27 September 2018 states that, by that time, Megan was managing to do more with the assistance of painkillers. I cannot be sure that Megan was not occasionally resorting to a wheelchair as that statement suggests.

1. 1. Nor am I sure that what was said in the witness statement of 23 September 2013 was knowingly false, though again I think it probably was. There Mrs Colley stated that Megan could only walk short distances and therefore used a wheelchair when walking long distances outside, and attended school in her wheelchair. There is a lack of documentary evidence to corroborate those assertions. The 2011 email referred to at paragraphs 55-56 above, though specifically focusing on Megan’s needs at school, did not mention a wheelchair and referred instead to her walking to the toilet. Mrs Colley’s most recent statement itself refers to Megan taking her wheelchair to school more regularly from the age of 14, which would have been after the witness statement of 23 September 2013.

1. 1. However, none of the evidence from Megan’s school teachers dates back to 2013. There is no equivalent, for that period, of the video evidence of theatre productions which the Court has for the time when Megan was at college. There is also Mr Doherty’s evidence that he frequently took Megan to school with her wheelchair, though Ms Harrison has forcefully pointed out certain shortcomings of that evidence. Bearing in mind the limited information available about that earlier period, I do not find, to the criminal standard, that the assertions in the statement of 23 September 2013 were untrue.

1. 1. The findings of contempt which I do make are not based on the surveillance video, although its contents are entirely consistent with my findings. That is because it is possible, though in my view very unlikely, that when she walked quite long distances at a brisk pace in that footage, she was doing so on “good days” and with the help of an increased intake of painkillers. The medical evidence tends to suggest otherwise but, considered as a whole, does not entirely exclude that possibility. Not having heard live evidence from the experts, I cannot go behind what they say.

1. 1. For all of the above reasons, my ruling is that Mrs Colley committed contempt of court by knowingly making false statements, supported in each case by a statement of truth:

i. in her witness statement dated 5 November 2017, that the information contained in Amy Dooley’s report was accurate; and

ii. in the Schedule of Loss dated 16 March 2018, that Megan “is currently reliant upon the use of a wheelchair when out of the house.”

THE SENTENCE

The judge sentenced Mrs Colley to six months imprisonment, suspended for two years.