LIVERPOOL VICTORIA INSURANCE CO LTD v KHAN & ORS (2016)

An insurance company applied for permission to bring contempt proceedings against the second and third respondents (R2 and R3).

R3, a doctor, had examined a driver who had been in an accident in December 2011. His report, dated 17 February 2012, said the driver had symptoms including muscle spasms and continuing pain. The driver’s solicitors, who included the first respondent (R1), prepared a trial bundle with a copy of a report from R3; that copy, also dated 17 February 2012, did not mention spasms and said the pain had resolved within one week. The insurance company began an inquiry and interviewed R3 on 20 August 2013. He said he didn’t recall the report or being asked to amend it, and that the “one-week pain” report was correct. However, in a later statement, he said he had amended the report himself, because the “one-week pain” report had only included the acute symptoms, and that he had looked at the report on 19 August. He said that he had amended the report on the basis of a letter from R1 dated 22 February 2012. Metadata showed that the only copy of that letter, an electronic copy, was created on 28 August 2013. An email chain from 24 February 2012 had been disclosed; in it R1 told R3 that the driver was still experiencing pain, and requested that the report be amended. R2 worked for a claims company and helped the driver with his claim. His statement said that the driver was happy with the amended report. The driver’s statement was that the pain had resolved within three days and he had not asked for an amendment.

The issues were whether (1) there was a strong prima facie case that R3 knowingly, or without caring, made a false statement that was likely to interfere with the course of justice; (2) the public interest and overriding objective were in favour of granting permission; (3) permission should be given to proceed against R2.

HELD: (1) It appeared that the email chain, not the letter, had contained the amendment request, and on the face of it the letter was not genuine. The emails indicated that R3 had been willing to alter the prognosis and details of the patient examination without further inquiry. There were discrepancies in R3’s account. The 20 August statement was no longer his case; he later said he had in fact looked at the report on 19 August. He relied on the letter as genuine, but he ought to have known that he had never seen it. There was strong prima facie evidence that he was taking steps to obscure what had happened. There had been a fundamental change between the two reports. The court took into account his good character, but that was not a full answer to the allegations. The insurance company had not provided evidence of a motive for R3 to falsify, but that was not a necessary ingredient to obtain permission. R3 completed a large number of medical reports and had a great deal of experience, but there were inconsistencies that could not be explained as mere errors, such as the details of the examination itself changing between the report, with new symptoms appearing, or the email chain showing that R3 was happy to amend the report on request. It was understandable that a busy doctor might not remember a patient a week later, but he had not asked why the solicitor said the driver was still in pain, contradicting the examination. On its face, it was not credible that an experienced doctor was willing to accept, without more, that his patient history and examination had been wrong.

(2) The court rejected R3’s contention that given that no trial had occurred, it was not in the public interest to proceed, Malgar Ltd v RE Leach (Engineering) Ltd [2000] C.P. Rep. 39 considered. Unlike in Malgar, where the defendant had not persisted with the statements and the trial had been ongoing, the underlying case had been halted because of the solicitors’ error in disclosing the original report. Without that error, the original report would not have come to light. The court would have proceeded with the amended report, which was prima facie inaccurate. That could be seen to strike at the heart of the civil justice system. Road traffic accidents caused a high volume of work in the county courts. Although the court had not made findings based on the report, the public interest was involved. Committal proceedings were not quick or easy, and defendants had to be protected against serious allegations, but it was in the interests of justice and of the overriding objective for the proceedings to continue.

(3) The case against R2 was heavily dependent on the driver’s evidence, but that evidence had not been tested and the court’s ability to assess it was limited. It was consistent with other available evidence and nothing appeared embellished. No reason had been suggested for him to have lied. R2 had been properly served but had taken no part in the proceedings. The driver’s evidence constituted a strong prima facie case, and the court was satisfied that it was in the interests of justice and the overriding objective to give permission for contempt proceedings against R2.

Application granted

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