Lexis Nexis E-Bulletin Series: Contempt Proceedings and Contempt of Court – Part 6

Generally

This e-bulletin covers the circumstances in which committal proceedings can be brought for the making of false statements and the process to be adopted in bringing them. This e-bulletin should be read in conjunction with the ‘Nuts and Bolts’ e-bulletin published previously, giving a general overview of these types of proceedings.

This e-bulletin includes circumstances where the false statement relates to an affidavit, the notable difference being that for an affidavit committal, permission is not needed as per Inspire Sports v Shorey [2015] EWHC 2040 (QB).

The law and process for the bringing of committal proceedings in relation to false statements is governed by CPR 32.14. CPR 32.14 reads as follows;

“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.”

For further reading, the key authority in this area is Walton v Kirk [2009] EWHC 703 (QB).

Permission Required

CPR Part 81.18 specifies that the permission of the High Court or the Attorney General is required to bring committal proceedings for false statements (permission is not required in affidavit cases).

To comply with CPR 81.14(5) if the respondent intends to appear at the permission hearing they must;

• Given seven days’ notice in writing of the fact to the court and the other party;

• Provide a written summary of the submissions they intend to make.

Permission Requires a Strong Case

The primary authority which examines the factors that a court should take into account in deciding whether to grant permission is KJM Superbikes v Hinton [2008] EWCA Civ 1280.

As a starting point it should be remembered that;

“…the question for the court on such an application is not whether a contempt of court has in fact been committed but whether proceedings should be brought to establish whether it has or not.”

In KJM Superbikes the court of first instance refused permission for contempt proceedings to be brought. In overturning the decision the Court of Appeal took the opportunity of clarifying the proper matters to be taken into account. In summary these were:

• how strong is the evidence establishing the false statement;

• the significance and potential effect of the false statement; and

• the state of mind of the maker of the statement and evidence as to knowledge of its effects.

In Liverpool Victoria Insurance Co Ltd v Khan & others (2016) 21 June 2016, QBD, applying the above principles, the court gave permission for committal proceedings where there was a strong prima facie case that a Doctor “had knowingly, or without caring, made a false statement” and there were “inconsistencies that could not be explained by mere error.”

A Public Interest Test

The three factors above largely reflect those set out in Walton. However in KJM Superbikes, referencing the earlier authority of Malgar Ltd v R.E. Leach (engineering) Ltd [2000] FSR 393, the court made specific reference to the strong public policy grounds for pursuing contempt proceedings in such cases. The Court stated;

“…when considering whether to give permission for proceedings to be taken in any particular case the court must have regard to the public interest alone”.

It is trite to say but there is a strong public interest in preserving the sanctity of the statement of truth on pleadings or statements.

This is also apparent from the authority of Haederle v Thomas and others [2016] Judgment 2 November 2016 where the court was prepared to accept that an unsigned affidavit was still an affidavit, the essential ingredients were that the proposed contemnor had sworn an oath as to the truth of its contents. As such, the person would be liable for committal.

Nevertheless, the court in KJM Superbikes went on to give the following warning;

“In my view the wider public interest would not be served if courts were to exercise the discretion too freely in favour of allowing proceedings of this kind to be pursued by private persons. There is an obvious need to guard carefully against the risk of allowing vindictive litigants to use such proceedings to harass persons against whom they have a grievance…”.

In summing up, the court stated;

“that the court should exercise great caution before giving permission to bring proceedings. In my view it should not do so unless there is a strong case both that the statement in question was untrue and that the maker knew that it was untrue at the time he made it. All other relevant factors, including those to which I have referred, will then have to be taken into account in making the final decision.”

It is suggested that if a practitioner wanted a single, pithy summary of the approach to be adopted by the courts, this final quote is probably it. For an example of where an insufficiently strong prima facie case was mounted, see Berry Piling Systems Ltd v Sheer Projects Ltd [2013] EWHC 347 (TCC).

To Highlight or to Ambush?

It is tempting for a practitioner, on reviewing the papers, who concludes that they have managed to catch an opposing witness in a lie, to wait until trial to deploy the trap. In terms of the primary litigation this may be a sensible approach. However, the courts have given firm guidance that should a party wish to seek permission for committal, they must do so promptly.

In GB Minerals Holdings v Short [2015] EWHC 1387 (TCC) the court quoted heavily from the judgment in KJM Superbikes. In particular, the court noted that:

“Although we did not hear argument on this point, I think that in general a party who considers that a witness may have committed a contempt of this kind should warn him of that fact at the earliest opportunity (as the appellant did in this case) and that a failure to do so is a matter that the court may take into account if and when it is asked to give permission for proceedings to be brought.”

When Should a ‘False Statements’ Committal be Heard?

For the most part, this question shouldn’t cause practitioners any particular difficulty. The usual way in which false statements are notionally established is during cross examination during a trial and, therefore, the committal hearing would take place after the trial.

However, there are circumstances where false statements could be exposed pre-trial (such as a personal injury claimant being placed under surveillance and the fruit of the surveillance disclosed to the claimant’s team). Below, as part of this practice note, the distinction between exaggeration and lies is explored.

Where a witness may still give evidence in a trial, the usual form is that the committal hearing should take place after the trial, or the hearing in which the witness is to give evidence, so as to avoid any prejudice to the witness. In KJM Superbikes the court dealt with the issue as follows:

“it is important not to impose any improper pressure on a witness who may later be called to give oral evidence…an application…should not be made, and if made should not be entertained by the court, until he has finished giving evidence”

There are a number of authorities that have been decided both ways, hearing committals both pre- and post-trial. Each case is entirely dependent on it facts, but the theme through all of them is whether the hearing can be held without prejudice to the witness and the evidence to be given.

Burden of Proof, Standard of Proof and Ingredients of Contempt

Once permission has been granted, Walton, adopting the principles set out in the High Court decision of Caerphilly County Borough Council v Hughes and others (2005) (unreported) Mr Justice Silber sitting in Swansea, confirms that the onus is on the applicant for committal to prove the necessary ingredients. Also, that the standard of proof is the criminal standard and the following matters must be proved for a ‘false statement’ committal;

• the statement was false;

• the false statement (or the aspects which are false) interfered, or were likely to interfere with the administration of justice in a material respect; and

• when the false statement was made, the maker did not honestly believe in its truth and knew of the likelihood that it would interfere with the administration of justice.

The e-bulletin “Committal Proceedings – Nuts and Bolts” gives further information and guidance as to what must be included in any applications. In addition, in relation to false statements in particular, as an example of good practice in making such applications and also how to represent, or display the false statements alleged, reference should be made to JTR v HNL [2015] EWHC 2298 (QB).

In that case, though ultimately unsuccessful, the claimant served a “schedule of false statements”. The court described the presentation of the schedule as follows;

“The Schedule contains three columns. These (1) list nine statements contained in the Respondent’s two witness statements, quoting their terms, and in relation to each statement, state (2) why it is said to be false, and (3) the grounds on which the Applicant contends that the Respondent knew it to be false.”

It is suggested that adopting this Scott-schedule type approach (and the approaches set out in the “Nuts and Bolts” e-bulletin) the applicant can present the specifics of the individual contempts complained of in a very clear, straightforward fashion.

Lies, White Lies and Whoppers…

the difference between dishonesty and exaggeration

The fundamental plank for a false statements committal is a statement without an honest belief in its truth. However, as will be appreciated there is a difference between an exaggeration and a false statement. The court’s assessment will very much depend on the facts and circumstances of the case. Where a court determines that there is an element of exaggeration, rather than outright falsity, the court may not consider this to be a contempt or alternatively, may not deem it to satisfy the public interest test as set out above.

Much of the case law in this area is in relation to personal injury litigation, where a claimant has alternatively exaggerated, or lied, about their symptoms. However there is no reason why the principles to be derived from personal injury litigation cannot apply to other fields, see Haederle above as an example.

Two authorities neatly encapsulate the tension in a court’s decision making as between exaggeration and lies. The court in AXA Insurance UK Plc v Rossiter [2013] EWHC 3805 (QB) did not find dishonesty and stated “some exaggeration might be natural, even understandable…” whilst in Brighton and Hove Bus & Coach Co Ltd v Brooks and others [2011] EWHC 2504 (Admin) found relatives of the injured person to have lied about the level and impact of the claimant’s symptoms. It is worth reading both judgments.

Even where lies (rather than exaggeration) are found by the court, this does not necessarily lead to contempt if those lies are peripheral, see Zurich Insurance v Kay [2014] EWHC 2734 (QB).

Richard Shepherd

Next Tuesday’s e-bulletin examines “County Courts Act Offences and High Court Certifications”