WHEN WITNESSES TOTALLY CHANGE THEIR EVIDENCE AT TRIAL: A CASE IN POINT

In  Advantage Insurance Company Ltd v Harris [2024] EWHC 626 (KB) HHJ Russen KC (sitting as a High Court Judge) found that a claimant in a personal injury action had been in contempt of court for making false statements.  It is an example of how a witness can completely, and apparently easily, change their evidence once cross-examined.  There are also important observations about the role of the CNF and pre-action conduct in relation to contempt of court.

In his testimony at that trial Mr Harris confirmed that his witness statement was true and accurate to the best of his knowledge and belief and initially maintained that he had sustained a neck injury as a result of the collision. However, under cross-examination and in response to questions from the Judge, Mr Harris admitted that he had not injured his neck as a result of it”

THE CASE

The defendant in these committal proceedings had brought an action for damages for personal injury following a vehicle collision in a car park. His solicitors filed a CNF stating that he had suffered injuries and, in due course, proceedings were issued.  The Particulars of Claim (signed by the solicitor) stated that the defendant had been injured, the defendant had given the same account to the medical expert and this was confirmed in a signed witness statement.  At trial the defendant confirmed his witness statement but, in cross-examination, conceded that he had not, in fact, suffered an injury to his neck.  The action was dismissed and the defendant found fundamentally dishonest.  These proceedings were committal proceedings brought by the insurer.

THE EVIDENCE AND THE CHANGE OF MIND AT TRIAL

HHJ Russen KC set out the background.

 

    1. The contempt application arises out of Mr Harris having advanced an unsuccessful personal injury claim which arose out of a vehicle collision involving his car (and another Vauxhall Corsa) in a supermarket car park on 24 June 2017.

 

    1. On 20 February 2020 Mr Harris brought proceedings against Advantage in their capacity as insurer of a Mr Taylor who was the driver of the other car involved in the collision. He issued his claim in the County Court Money Claims Centre in Northampton under Claim No. G20YJ241 (“the Claim“). It was what is known as a “whiplash claim”; the value of such claims accruing after 31 May 2021 having since been significantly contained (in the absence of exceptional circumstances) by the Whiplash Injury Regulations 2021, SI 2021/642. The issue of the Claim had been preceded by solicitors for Mr Harris, Amanda Cunliffe Solicitors of Macclesfield, sending Advantage a Claim Notification Form (RTA 1) (“CNF”) dated 13 May 2019. This said that Mr Harris had suffered an injury as a result of collision which was described as “soft tissue left shoulder whiplash neck“.

 

    1. The Claim Form stated that he expected to receive between £5,000 and £10,000. Mr Harris served Particulars of Claim which were supported by a statement of truth dated 7 November 2019 (and therefore some 2 months or so before the Claim was issued) and signed on his behalf a representative of the solicitors who said she was duly authorised by Mr Harris to sign it. The Particulars of Claim summarised the injury said to have been suffered by Mr Harris as “whiplash injuries to the neck” as identified in the attached medical report of Dr Geoff Hogg, a General Practitioner, dated 23 May 2019. There was no mention of soft tissue shoulder injury. Dr Hogg’s Report recorded Mr Harris telling the doctor that the accident caused “extensive damage” to his vehicle and that the collision had been such as to throw him from “side to side”. Mr Harris reported suffering from neck pain within 24 hours of the accident, localised to the mid-line, and on examination represented that he was suffering pain on movements in all directions save for flexion. Dr Hogg recommended physiotherapy and predicted that Mr Harris would recover within 26 months of the accident (and therefore within about 3 months of the medical examination). Dr Hogg concluded that the accident was the cause of the reported neck pain. He diagnosed a soft-tissue, whiplash style injury to the neck.

 

    1. Mr Harris’ Particulars of Claim also sought general damages for personal injury along with special damages of £15 which was said to represent miscellaneous (though undocumented) telephone calls, postage and travel costs. The Defence served by Advantage admitted that Mr Taylor had driven negligently but denied that any injury could have resulted from what was said by Advantage to have been such a minor collision.

 

    1. Mr Harris made a witness statement in support of the Claim which was dated 11 December 2020 and verified by his statement of truth. In that witness statement Mr Harris alleged that his vehicle, and his body, were knocked side to side as a result of the collision. He said that he suffered neck pain as a result of the accident and relied upon the report of Dr Hogg. He said that he had recovered from the injury by the time of signing his statement (and that the recovery was in line with Dr Hogg’s prognosis) but that he still suffered from the “odd twinge every now and then”.

 

    1. The trial of the Claim took place in Exeter County Court on 19 November 2021 before Deputy District Judge Davy (“the Judge“).

 

    1. In his testimony at that trial Mr Harris confirmed that his witness statement was true and accurate to the best of his knowledge and belief and initially maintained that he had sustained a neck injury as a result of the collision. However, under cross-examination and in response to questions from the Judge, Mr Harris admitted that he had not injured his neck as a result of it. Reading the transcript of the trial reveals that he made this admission really quite quickly and readily after the initial confirmation of his witness statement. Mr Harris also accepted that he did not have any out-of-pocket expenses and could not explain why he had approved any claim for their recovery.

 

  1. The Judge dismissed the Claim in its entirety and ordered that he should pay Advantage’s costs in the sum of £6,803.22. The Judge found that the Claim had been a fundamentally dishonest one and as Advantage were therefore permitted to enforce the costs order against Mr Harris (thus disapplying the ordinary restriction upon the enforcement of costs set out in CPR 44.13 and 44.14). I was told by counsel that Mr Harris has not yet met that costs order.

 

A FALSE CNF

The CNF also contained a false statement. The judgment considers the relevance of this.

    1. In his supplemental written submissions for the later hearing on 10 November 2023 Mr McGrath provided an explanation as to how the CNF sits within the administration of justice over personal injury claims. This was required for someone like me who has minimal knowledge and no experience of such claims. Mr McGrath drew my attention to the following points:

 

i) any potential Claimant making a personal injury claim which is estimated to be of less than £25,000 in value is required to complete and submit a CNF to both the defendant (alleged) tortfeasor and the defendant’s insurance company: see the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents from 31 July 2013 (and noting that this case predated the ‘whiplash reforms’ implemented by the 2021 Regulations);

ii) any failure to adhere to the terms of the Pre-Action Protocol (which is often referred to as the MoJ Portal) carries sanctions;

iii) the first stage of initiating a personal injury claim to the Courts is therefore issuing a CNF to the defendant and the defendant’s insurer: see paragraph 6.1 of the Pre-Action Protocol; and

iv) a CNF carries with it a statement of truth.

    1. In connection with that last point Mr McGrath referred to Richards v Morris [2018] EWHC 1289 (QB) where Martin Spencer J said this about CNF’s:

 

“7. I interpose to make two comments about CNFs generally. Firstly, CNFs are important documents because not only are they the first notification of a claim to the potential defendant’s insurer in low value personal injury claims in road traffic accidents where the damages sought are between £1,000 – £25,000 but also they will often be the basis for early settlement of the claim. Thus, a claim may go no further than the submission of a CNF and an offer of settlement based on it, which is accepted.

8. Secondly, and linked to the first point, the statement of truth is thus important as it means, or should mean, that the insurer can rely on the accuracy of the contents of the CNF in assessing the damages and any offer of compensation to be made. Where the statement of truth is signed by a claims manager on the claimants’ behalf, as here, the insurer trusts the claims manager and, through him or her, the firm of solicitors to have taken proper instructions and to have verified the accuracy of the contents of the document. It is worth remembering the provisions of the practice direction to Part 22 of the Civil Procedure Rules which states:

“3.8. Where a legal representative has signed a statement of truth, his signature will be taken by the court as a statement –

1) that the client on whose behalf he has signed and has authorised him to do so,

2) that before signing he had explained to the client that in signing the statement of truth he would be confirming the client’s belief that the facts stated in the document are true

3) that before signing he had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts.”

CPR 32.14, relating to false statements, provides that “proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.””

    1. These observations were not made in contempt proceedings but instead on a successful appeal against a County Court judgment awarding general damages to the damages to the claimants for personal injuries. The judge recognised, as I have, that a dishonest CNF may support a finding of contempt under CPR 32.14 and CPR 81.3(5)(b). Allowing for subsequent changes to CPR 81, that also appears to have been the basis of the judge’s finding of contempt Liverpool Victoria Insurance Company Limited v Hall (a case in which Mr McGrath appeared) by reference to a false CNF and subsequent court documents.

 

    1. The authority relied upon by Mr McGrath which, in my judgment, does answer the query I raised at the July hearing is the Court of Appeal’s decision in Jet 2 Holidays Limited v Hughes and anor[2019] EWCA Civ 1858[2020] 1 WLR 844. It is clear that it is the Court of Appeal’s judgment, at [17]-[18], [26] and [50], which led to the CPR being changed to the current expanded language of CPR 32.14 from the previous language which constrained the judge at first instance in that case and upon which Warby J also commented in Liverpool Victoria Insurance Company Ltd v Yavuz.

 

    1. In Jet 2 Holidays Limited v Hughes the contempt application was based upon the making of false statements in witness statements sent purportedly in compliance with the Pre-Action Protocol for Personal Injury Claims in anticipation of proceedings which were never in fact commenced. The witness statements were therefore without a heading or case number. In circumstances where the point was of much greater significance to the outcome of the contempt application than it is in the present case (see my observation in paragraph 36 above) the Court of Appeal considered whether the false witness statements could nevertheless support an order for committal under the exercise of the court’s inherent power to commit for contempt on the language of CPR 81 as it then was.

 

    1. The Court of Appeal held that it could, saying:

 

“30. 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”.

31. 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 [1989] 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.”

32. Watkins LJ quoted, in that connection, the following words of Sir John Donaldson MR in Attorney-General v Newspaper Publishing Plc [1988] Ch 333 at 388:

“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 [1963] 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.”

33. We agree with that statement and with the decision and reasoning of the Divisional Court in Attorney-General v News Group Newspapers plc. They are applicable to the circumstances under consideration in the present case and on this appeal.

……………

……………

36. 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.

………….

………….

39. Some PAPS are more closely integrated with the CPR than others. For example, the PAP for Low Value Personal Injury Claims in Road Traffic Accidents and the PAP for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims are the subject of specific provisions in Section 11 of CPR Pt 36 (dealing with offers to settle) and Section III of CPR Pt 45 (concerning fixed costs) and Practice Direction 8B. The Resolution of Package Holiday Claims PAP is the subject of specific provision in Part IIIA of CPR Pt 45 (concerning fixed costs).

40. All PAPs, however, expressly state that one of their objects is to enable proceedings to be managed efficiently where litigation cannot be avoided: see, for example, the Practice Direction on Pre-Action Conduct and Protocols para. 3(e), the Personal Injury Claims PAP at para. 2.1(d), the Disease and Illness Claims PAP at paras. 1.2 and 3.1 and the Resolution of Package Travel Claims PAP at para 3.1(5). Para. 4 of the Pre-Action Conduct PD provides that neither a PAP nor the PD must be used by a party as a tactical device to secure an unfair advantage over another party and that only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual or expert issues. A dishonest witness statement designed to elicit from a potential defendant an admission which may be deployed against that person in any subsequent proceedings (as to which, see CPR 14.1A), runs directly counter to that requirement. The adverse consequences for the proper administration of justice are plain.”

  1. In the light of what Mr McGrath has told me about the purpose of the CNF, and what the Court of Appeal said at [39] about the pre-action protocol under which it was sent, it is therefore clear that the making of a false statement of truth in a CNF is capable of supporting a finding of contempt under CPR 81.3(5)(a) as well as (now) CPR 81.3(5)(b).

 

THE RESULT

The judge found that the claimant had been in contempt of court. He was fined £3,000.