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Kirk v Walton, High Court, 24 July 2008

20 August 2008
The issues

Road traffic – exaggerated claim – false statement made by Claimant, verified by statement of truth – contempt of Court.

The facts

On the 10th August 2004 the Claimant, Joanne Kirk, issued proceedings in the Stockport County Court for damages for personal injuries after a minor road traffic accident in September 2001. The Claimant suffered a “rear shunt injury”. The Particulars of Claim referred to the Claimant’s symptoms of neck pain, radiating into her shoulders remaining severe and deteriorating such that by October 2002 she ceased work as an administrator in a university. In January 2005 her solicitors served a Schedule of Damages in which the Claimant was seeking compensation for a total figure of over £800,000.00.

In February 2005 the Defendant paid £25,000.00 into Court and offered to repay CRU state benefits, which were approximately £9,000.00. In November 2004, the Claimant’s physician and rheumatologist took the view that the Claimant had developed fibromyalgia, triggered by the accident, and that she was significantly disabled. The rheumatologist instructed by the Defendant took a different view, namely that the Claimant did not have fibromyalgia and that there was evidence of exaggeration. Video surveillance was undertaken by the Defendant, which the Defendants believed showed that the Claimant’s various statements, as verified by a statement of truth as to the nature and extent of her injuries and disabilities, were untrue. The DVD recordings were disclosed and subsequently a Part 18 request served, including questions about the various statements she had made in the context of the DVDs. The Defendant’s expert was asked to consider the DVDs and to comment on them. It was unclear whether the Claimant’s medical expert had been asked to do so or whether they had provided any comments. The action was stayed to enable negotiations to take place and in December 2006 the Defendant’s solicitors offered terms of settlement on the basis that the Claimant accepted the sum in Court, paying all of her own and the Defendant’s costs from 21 days after the payment in. A Consent Order to this effect was signed by the parties in June 2007. In November 2007 the Defendant’s solicitors applied to the action to be transferred to the High Court and for permission to bring proceedings against the Claimant for contempt of Court in making false statements without an honest belief in their truth.

The decision

Under CPR 32.14 a private individual could only bring committal proceedings on the basis of a person having made a false statement without an honest belief in its truth in a document verified by a statement of truth, with the permission of the Court. Following Malgar Ltd v R E Leach (Engineering) Ltd, these proceedings were brought in the public interest and, though in some respects were similar proceedings, they were civil proceedings to which the overriding objective was applicable. Following Sony Computer Entertainment v Ball, it was clear that the discretion to admit applications of this nature had to be exercised with great caution. Before the discretion was exercised, the Court had to be satisfied that there was a strong case and, preferably an admitted case, that a particular representation was untrue. The Court would approach this case therefore following those decisions on the basis that the discretion to grant permission should be exercised with great caution; that there had to be a strong prima face case shown against the Claimant but that the Court should be careful not to stray into the merits of the case at this stage; that the Court should consider whether the public interest required the committal proceedings to be brought; and that such proceedings had to be proportionate and in accordance with the overriding objective. The fact that the action had been settled on agreed terms did not extinguish any contempt. In view of the evidence and namely the contrast between the verified statements and that which were shown on the DVDs, taken together with the comments of the Defendant’s medical expert, there was a strong prima face case against the Claimant. The allegations were sufficiently serious to merit proceedings being brought in the public interest.

Application granted.

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