England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		The Royal Courts of Justice Strand London, WC2A 2LL
		22 January 2013

1. MR JUSTICE HOLROYDE: This is an application for permission to bring proceedings in contempt of court. The application is made by Homes for Haringey against Mrs Barbara Fari and her husband, Mr Piper Fari. For convenience, and to avoid any confusion by using legal terminology, I will simply refer to the parties as "Haringey", "Mrs Fari" and "Mr Fari" respectively.
2. Haringey have been represented today by Ms Crapper of counsel, and I have been greatly assisted by her written and oral submissions. Mr and Mrs Fari appear before me today as self-representing litigants. It is necessary to say a word about why that is so. Yesterday, I dealt on paper with an application by Mr Fari to adjourn today's proceedings. Although the application was in his name, it was, effectively, an application on behalf of both Mr and Mrs Fari, and it was put forward on their behalf by solicitors whom they have instructed.
3. The essence of the application was the contention that Mr and Mrs Fari had applied for legal aid so that they could be represented, but awaited an outcome and therefore needed further time. However, upon an examination of the papers, the following facts emerged: firstly, both Mr and Mrs Fari have known since 9 October 2012 that Haringey were considering commencing proceedings for contempt of court. They know that because of what happened in the lower court, to which I will come.
4. Secondly, notice of today's application together with today's date for the hearing was served upon Mr and Mrs Fari on 6 December 2012. It seemed to me, therefore, that there had been ample time for Mr and Mrs Fari to seek legal representation and legal aid if they wished but, despite that, the application for legal aid was not submitted until 15 January 2013.
5. In giving my written order refusing an adjournment, I indicated that no explanation had been given for the delay in making the application for legal aid. Today, the application for an adjournment has, in effect, been renewed, in particular by Mrs Fari. Mr and Mrs Fari have told me, first, that Mrs Fari was out of the country at the time when the notice of application was served (although she accepts she was made aware of it by her husband) secondly, Mr Fari told me that it has taken a good deal of effort on his part to find solicitors who were willing, and apparently able, to act for them.
6. I take those matters into account, but it seemed to me, having regard to the nature of the present application, including the fact that under the rules it is an application of a kind which could be dealt with on paper and bearing in mind also that I was not concerned to adjudicate upon any factual disputes between the parties, it seemed to me that disproportionate and unjustifiable delay would be involved in granting the adjournment of several weeks, which has been sought on Mr and Mrs Fari's behalf. In my judgment, having known of the prospect of these proceedings since last October and having known the reality of today's application since early December, they had had more than sufficient time to secure representation. For those reasons, I again refused today any adjournment of the proceedings.
7. Having refused an adjournment, I have endeavoured in the course of this hearing to ensure, first, that Mr and Mrs Fari have understood all that is being said against them and, secondly, that they have had full opportunity to address me about any matters they wish me to consider. I have endeavoured as I have gone along to assist them to present their points and I am grateful for the contribution which each of them has made.
8. I summarise very briefly the circumstances in which this application for permission arises. Mrs Fari brought civil proceedings against Haringey, claiming damages for personal injuries and loss suffered as a result of an accident when she tripped over a defective paving stone on 16 May 2008. The proceedings were commenced in May 2011. In due course, Haringey admitted liability but contested the issues of medical causation and quantum of damages.
9. The claim for damages was put forward from the outset and maintained throughout on the basis that, prior to the relevant accident, Mrs Fari had enjoyed a good level of general health and fitness, but that the injury sustained in the relevant accident had caused severe and disabling injury.
10. As an important (and in financial terms substantial) part of her claim, Mrs Fari alleged that she was in need of care and attendance, much of which for a lengthy period of time it was said had been provided by her husband. The claim was quantified on the basis that the past care requirement had been no less 16 hours a day, and there was a claim for continuing and future loss, which included care said to be necessary for 10 hours a day.
11. As is often of course the case with personal injury claims, the claim for past and future care costs comprise a substantial part of the overall sum claimed. I do not think it necessary for present purposes to go into greater detail as to the nature of the case advanced. It was aptly summarised by Ms Crapper in her oral submissions to me today when she suggested that the claim for damages was put forward on the basis that the relevant accident had rendered Mrs Fari little more than a shadow of her former self.
12. Ultimately, the total sum claimed by way of damages amounted, in round figures, to about £750,000. As I have said throughout the course of the proceedings, the claim was put forward on the basis that the whole of the claimed loss flowed from the injury suffered in the accident of 16 May. Again, as one would expect in personal injury litigation, both Mrs Fari and, at times, Mr Fari gave accounts of her pre and post-accident symptoms and disability to medical experts instructed to prepare reports for the assistance of the court. In addition, both Mr and Mrs Fari signed statements of truth in respect of various documents and witness statements, which presented the claim on the basis which I have indicated.
13. However, Haringey became suspicious about the claim and made arrangements for surveillance of Mrs Fari in late 2011 and early 2012. Covert video recordings were made of Mrs Fari. Haringey's case is that these video recordings presented a strikingly different picture from that which had been portrayed in the statement of case and other documents.
14. On a date when there was recording of Mrs Fari as she travelled to a medical examination, Mrs Fari was seen to be using a taxi for the journey and to be walking between taxi and building in a manner indicative of a person suffering considerable pain and disability. In other recordings, however, on days when Mrs Fari was not attending a medical examination, Haringey contend that the video recordings show she was able to move comparatively freely, did not appear to be in pain and appeared to be able to undertake the activities of daily living without significant difficulty. Haringey further contend that the video recording makes it perfectly plain that Mrs Fari was not in need of care and attention from her husband or anyone else.
15. As the case progressed and as inquiries continued, it also became a significant feature of Haringey's case to note that Mrs Fari suffered the misfortune in adolescence of an injury to one knee, which necessitated surgery and resulted in one of her legs being shorter than the other. In the result, Haringey contended that Mrs Fari's claim for damages had been exaggerated to an extravagant and remarkable degree. The level of disability, contended Haringey, was far less than had been claimed and such disability as might be observed was, in truth, consequent upon the childhood injury and shortening of the lower limb rather than upon the accident of May 2008.
16. Following further medical examinations and with those considerations in mind, Haringey assessed the true value of the claim for damages at no more than £1,500. Thus, it is said by Haringey that the true value of the claim was approximately 0.5 per cent of the figure claimed.
17. Against that background, the case came before His Honour Judge Mitchell, sitting in the Central London County Court, on 9 October 2012. The learned judge heard submissions and viewed part of the video evidence which would have been relied upon by Haringey had the matter gone to trial. The judge had well in mind, and indeed quoted from, the then recent decision of the Supreme Court in Summers v Fairclough Homes Limited [2012] 1 WLR 2004. He concluded that this was a proper case for the entirety of the claim to be struck out. He pointed out in the course of his careful judgment that it was not a case in which there had been a trial and a trial date had not yet been reached.
18. At paragraph 21 of his judgment, Judge Mitchell said this: that the case had been allocated to the multi-track:

"It is manifestly the case that that is because the claimant has grossly exaggerated her injuries as a result of a very minor incident and if the court does not take the draconian step (and I appreciate it is) of striking out this claim, it is going to continue in the system, causing delay and causing others who are waiting for their trials to be heard at Central London to be kept waiting even longer."

(Quote unchecked)

19. The judge, in addition to striking out the claim, made an order for costs against Mrs Fari and transferred the proceedings to the High Court because of the indication given on Haringey's behalf that they wished to consider applying to the High Court to bring proceedings for contempt of court. Hence, my earlier indication, when considering the application for an adjournment, that Mr and Mrs Fari have known since last October that they might face a hearing such as this.
20. I would add this: that it is apparent from the terms of Judge Mitchell's judgment that he had well in mind that in Summers v Fairclough Homes Limited the Supreme Court envisaged that there would be comparatively few claims which would be struck out in their entirety on grounds such as these. The learned judge was, nonetheless, satisfied that this case was so extreme in its circumstances that it was properly to be regarded as coming within that category.
21. So the matter comes before me. Ms Crapper has very properly drawn my attention to an initial procedural matter which arises as follows: it was noted by those acting for Haringey that the documents in relation to this application, which were served upon Mr and Mrs Fari on 6 December 2012, were in an inappropriate form. It appears that the court had mistakenly treated this present application as simply an application in existing proceedings rather than a new part 8 claim form.
22. Steps were, therefore, taken to regularise the position by issuing a part 8 claim form. That was done, I am told, by way of an affidavit of service, that the claim form was served on Mr Fari and on him also with a view to his passing the documentation to his wife, who was said to be inside the house at which service took place. Mr and Mrs Fari have helpfully acknowledged today that they were indeed served in that way.
23. I am satisfied that this procedural error or defect has not resulted in any prejudice at all to Mr and Mrs Fari, who had full particulars of all matters raised against them back on 6 December 2012. The defect was one of form; it has not in any way altered the substance of the information they have had since that date. Indeed, by way of acknowledgement of service in December 2012, Mr and Mrs Fari indicated that a defence to the allegations would follow, albeit that nothing further has been received from them.
24. This is an appropriate case, it seems to me, applying the considerations to be found at paragraph 16.2 of Practice Direction 81, for the court to waive the procedural defect, and I do so. The result, I am satisfied, is that Mr and Mrs Fari have had ample notice of the very detailed allegations made against them.
25. I do not think it necessary to recite those detailed allegations, suffice to say that, as against both Mrs Fari and Mr Fari, it is alleged that they interfered with the due administration of justice; in particular, by giving false information to the medical experts instructed on each side in the civil litigation and, secondly, that they made false statements of truth in connection with a number of witness statements and statements of case filed during the civil litigation.
26. By way of example only and without going into further detail, I refer briefly to two examples noted by Ms Crapper in her skeleton argument. First, in relation to Mrs Fari, on 19 March 2012, she was the object of covert surveillance, and video footage shows her walking to the shops carrying carrier bags, with at least some contents, back from the shops, and negotiating stairs without evident difficulty, all the time accompanied by a young child who appears to be in Mrs Fari's care. On the very next day, Mrs Fari signed a witness statement, verified by a statement of truth, in which she asserted that, because of the injuries sustained in the relevant accident, she had to stay indoors on most days but, when it was absolutely necessary for her to leave the house, she was always accompanied by her husband and made use of a taxi. She further said that she usually wore a cast or walked with the aid of a stick, that she negotiated stairs by sliding on her buttocks and that she spent most of her days indoors avoiding the shame and stigma of her current state, thereby missing out on memorable moments in the lives of her grandchildren and children.
27. So far as Mr Fari is concerned, an example relied upon by Ms Crapper is that on 21 March 2012, Mrs Fari was again recorded on video walking to a local cash point machine and back again, without apparent difficulty. On that very day, Mr Fari signed a witness statement, verified by a statement of truth, in which he too asserted that his wife walked with the aid of a stick and/or a cast, had the greatest difficulty negotiating stairs and that he had had to undertake the responsibility of a domestic assist, thereby depriving him of the opportunity to earn any income.
28. Those then are the circumstances in which the application comes before me. I emphasise again, as I have been at pains to explain to Mr and Mrs Fari throughout this hearing, that I am not today deciding any disputed issues of fact. The solicitors instructed on behalf of Mr and Mrs Fari wrote in December indicating that they denied the allegations made against them. Both Mr and Mrs Fari have emphatically confirmed those denials in the course of their oral submissions to me today. I shall say a little more of particular points made by them in due course. It is, however, abundantly plain that both Mr and Mrs Fari deny all allegations of contempt of court.
29. To summarise the issues which I do have to decide in determining this application, I can do no better than adopt gratefully that which was said by Cox J at paragraph 29 of her judgment in Kirk v Walton [2008] EWHC 1780 (QB). The learned judge there said:

"I approach the present case, therefore, on the basis that the discretion to grant permission should be exercised with great caution; that there must be a strong prima facie case shown against the Claimant, but that I should be careful not to stray at this stage into the merits of the case; that I should consider whether the public interest requires the committal proceedings to be brought; and that such proceedings must be proportionate and in accordance with the overriding objective."

30. That reference to the "overriding objective" is, of course, a reference to the overriding objective of dealing with cases fairly and justly.
31. I therefore consider the three issues which, in agreement with Cox J, I find must be determined by the court. First, as to whether there is a strong prima facie case, in other words, on the face of it, a strong case of an extravagant exaggeration of the true value of the claim by both Mr and Mrs Fari. I bear in mind that they both deny any such thing. I bear in mind in particular Mrs Fari's vehement assertions that she would never make any fraudulent claim. I bear in mind that she herself suffers the disadvantage that she is not able to read, and I bear in mind what she has told me about the extent to which she relied upon her solicitors in the civil litigation, because she had no real understanding of much of what was happening or, indeed, of the true import of documents which she signed. All those are matters which will need much fuller investigation at a later stage but, dealing with matters in the way in which I find appropriate to consider them today, I come to the following conclusion:
32. The history of the litigation, the quite extraordinary divergence between the picture of the claimant's health painted in the statements of case and that which is apparently shown on the video recordings, and bearing in mind also the findings of the learned judge below, I am entirely satisfied that there is, for present purposes, a strong prima facie case.
33. Mrs Fari made the perfectly valid point to me that the video recording does not show everything. That is, indeed, a good point to make and one which will no doubt be borne in mind by the court at a later stage, but it does not deflect me from the conclusion which I have indicated.
34. Secondly, I have to consider the public interest in allegations of this nature being investigated and, if appropriate, dealt with by the court. On the one hand, I have to bear in mind the various ways in which the outcome of the personal injury litigation has already brought adverse consequences upon Mr and Mrs Fari. As I have indicated, Mrs Fari's claim had a value, albeit one which Haringey assessed at no more than £1,500. Whatever the true value of the claim was, it was entirely lost to Mrs Fari when her claim was struck out by His Honour Judge Mitchell.
35. Secondly, Mrs Fari has a liability for costs.
36. Thirdly, and this is a matter which Mrs Fari particularly emphasised to me, there is a consequence for her, and indeed also her husband, of the reporting of the outcome of her claim in the local press. Mrs Fari told me that this has brought great shame upon her and her family, and she was particularly distressed in recounting to me her regret that her children may suffer in any way by the reporting of such matters. All those are factors which I take into account very much on Mr and Mrs Fari's side.
37. On the other side of the coin, however, it does seem to me that there is a strong public interest in a court deciding upon allegations of the sort made against Mr and Mrs Fari in this case. I cannot improve upon the words of Moses LJ in South Wales Fire and Rescue Service v Smith [2011] EWHC 1749 (Admin). I quote, paragraph 2:

"2. For many years the courts have sought to underline how serious false and lying claims are to the administration of justice. False claims undermine a system whereby those who are injured as a result of the fault of their employer or a defendant can receive just compensation.

3. They undermine that system in a number of serious ways. They impose upon those liable for such claims the burden of analysis, the burden of searching out those claims which are justified and those claims which are unjustified. They impose a burden upon honest claimants and honest claims, when in response to those claims, understandably those who are liable are required to discern those which are deserving and those which are not.

4. Quite apart from that effect on those involved in such litigation is the effect upon the court. Our system of adversarial justice depends upon openness, upon transparency and above all upon honesty. The system is seriously damaged by lying claims. It is in those circumstances that the courts have on numerous occasions sought to emphasise how serious it is for someone to make a false claim, either in relation to liability or in relation to claims for compensation as a result of liability.

5. Those who make such false claims if caught should expect to go to prison. There is no other way to underline the gravity of the conduct. There is no other way to deter those who may be tempted to make such claims, and there is no other way to improve the administration of justice.

6. The public and advisors must be aware that, however easy it is to make false claims, either in relation to liability or in relation to compensation, if found out the consequences for those tempted to do so will be disastrous. They are almost inevitably in the future going to lead to sentences of imprisonment, which will have the knock-on effect that the lives of those tempted to behave in that way, of both themselves and their families, are likely to be ruined.

7. But the prevalence of such temptation and of those who succumb to that temptation is such that nothing else but such severe condemnation is likely to suffice."

38. Those words were cited with approval in the speech of Lord Clarke in Summers v Fairclough Homes, and the principles set out by Lord Justice Moses were applied by the Supreme Court in that case. They have been applied in other cases, which I need not cite.
39. In my judgment, the key considerations here, emphasising, of course, that I deal with this matter on how things appear on paper at this stage without making any determination of the facts, are as follows: on the face of it, there is a remarkable disproportion between the true value of the claim and that which was put forward. On the face of it, it was an extravagantly false claim put forward from the very outset of the litigation.
40. In my judgment, in the circumstances of this case, there is a clear and strong public interest in that which is alleged against Mr and Mrs Fari being investigated by the court.
41. Thirdly, and finally, I have to consider whether the giving of permission for committal proceedings is a proportionate course for the court to take and one which is consistent with the overriding objective. To my mind, very similar considerations inform this assessment, as I have just considered in dealing with the area of public interest.
42. Mrs Fari wishes me to take into account, and I do very much take into account, that she is a lady with health problems, that she has the care of children, not all of whom themselves enjoy good health, and that she dreads any prospect of imprisonment. I bear in mind that Mr Fari, adopting as a convenient summary some words of mine, makes the submission that committal proceedings in these circumstances are the equivalent of taking a sledgehammer to crack a nut. But the overriding objective is that cases should be dealt with justly, and cases are not dealt with justly if claims are exaggerated, all the more so if claims are grossly exaggerated. On the face of it, and repeating yet again that I make no decision, this appears to be such a case.
43. In those circumstances, I am entirely satisfied that the bringing of committal proceedings is a proportionate course for the court to take.
44. Accordingly, I grant the present application, and I will hear from Ms Crapper about directions.