Obtaining Permission to bring Committal Proceedings for False Statements

In Zurich Insurance Plc v Romaine [2019] EWCA Civ 851, the Court of Appeal was asked to clarify the approach a court should take when asked to grant permission to bring committal proceedings under Civil Procedure Rules Part 81 against a party who has made a false statement of truth or false disclosure statement in proceedings.

The claim 

The case concerned a personal injury claimant who had brought a claim for noise-induced hearing loss. A medical report was attached to the particulars of claim and it stated that the claimant did not have any noisy hobbies. As required under Civil Procedure Rule Part 22, the particulars contained a statement of truth: in this case, it had been signed by the solicitors. The claim was defended and following disclosure of the claimant’s medical records, the records suggested that the claimant was a professional singer and motorcyclist. Both of these activities were potentially relevant to the question of whether his former employers had caused his hearing loss.

A request for further information was submitted by the defendant insurers and in the reply, the claimant denied that he was a professional singer, that he was in a live band and stated that he practiced the guitar only occasionally.  The reply also had a statement of truth: this time signed by the claimant.  These statements were repeated in the claimant’s witness statement: signed by the claimant. Searches of the claimant’s Facebook page revealed amongst other things that in fact, he had ridden motorcycles; he performed in a live rock-and-roll band and played the electric guitar as well as being the lead singer; the band performed and rehearsed regularly.

As a result of the discoveries, the defendant applied to strike out the claim for dishonesty.  Shortly after, a notice of discontinuance was filed by the claimant’s solicitors and a week after that, the solicitors were intervened by the SRA. The defendant then issued committal proceedings against the claimant alleging that the claimant was guilty of contempt of court for making a false statement in a document verified by a statement of truth. A witness statement in response was submitted by the claimant.

The application for permission to bring committal proceedings was dismissed on paper for two reasons. Firstly, the Judge decided that whilst there was good evidence of false statements being made deliberately, the documents on which the statement of truths appeared had not been signed by the claimant (whose signature had been digitally inserted) and it was not a sufficiently strong case bearing in mind the need for great caution before granting permission. Secondly, although it was in the public interest that dishonesty in litigation is identified publicly, it was not in the public interest that committal proceedings be brought in this particular case where the claimant had discontinued his claim at an early stage of the proceedings.

Following an oral hearing, the application was again dismissed and the applicants appealed to the Court of Appeal.

The principles relevant to the grant of permission to bring committal proceedings

The Court of Appeal reviewed the case law and identified the following principles:

  1. A person who makes a statement verified with a statement of truth or a false disclosure statement is only guilty of contempt if the statement is false and the person knew it to be so when he made it.
  2. It must be in the public interest for proceedings to be brought. In deciding whether it is in the public interest, it is relevant whether (I) there is a strong case; (ii) the false statements have been significant in the proceedings; and (iii) did the party understand the likely effect of the statement and the use to which it would be put in the proceedings.
  3. The court at the permission stage must give reasons but should be careful to avoid prejudicing the outcome of the full hearing.
  4. Only limited weight should be attached to the likely penalty.
  5. A failure to warn the party against whom the application is made at the earliest opportunity that they may have committed a contempt of court is a matter the court may take into account.
  6. Ultimately, the only question is whether it is in the public interest for contempt proceedings to be brought.
  7. At the permission stage, the court in determining whether the alleged contempt is of sufficient gravity for there to be a public interest in taking proceedings in relation to it will consider (I the strength of the evidence tending to show that the statement in question was false; (ii) the strength of the evidence tending to show that the maker knew at the time the statement was false; (iii) the significance of the false statement having regard to the nature of the proceedings in which it was made; (iv) the use to which the statement was put in the proceedings; (v) any evidence available as to the maker’s state of mind at the time, including his understanding as to the likely effect of the statement and his motivations in making the statement.
  8. The court should consider whether the contempt proceedings would justify the resources which would have to be devoted to them.
  9. The court should have regard to whether proceedings would further the overriding objective.
  10. The penalty which the contempt, if proved, might attract plays a part in assessing the public interest in bringing proceedings.

At [28], the Court stated that the overall approach of a court to an application for permission to bring committal proceedings should start with a consideration of whether there is a strong case that both the statement was untrue and that the maker knew it was untrue at the time that he made it. All the other relevant factors set out above will then have to be taken into account in making a final decision.

Ultimately, the Court emphasised that the issue for a court on an application for permission to bring committal proceedings is not whether a contempt has been committed, but whether it is in the public interest for proceeding to be brought to establish whether it has or not and what, if any, penalty should be imposed. Therefore, “the question of the public interest also naturally includes a consideration of proportionality” at [30].

The Court allowed the appeal because it considered that the Judge was mistaken in his approach to the issue of the absence of a warning to the claimant and that the Judge should have factored in the tactic of early discontinuance by unscrupulous claimants and lawyers as a way of protecting themselves from the consequences of their dishonest conduct.

On the warning issue, the Court held that the absence of a warning would not be a relevant factor in all cases. In practice, the absence of a warning was unlikely to be relevant in cases where the alleged party making the false statement is himself the claimant in the underlying claim and where the allegedly false statements are contained in claims documents prepared by himself or his solicitors and signed with a statement of truth: “it is difficult to conceive of circumstances where a claimant can be heard to say that he was prejudiced by the absence of warnings about the risks of contempt proceedings if he, himself, has been responsible for bringing a fraudulent claim” – at [47].

On the discontinuance issue, it was held that the Judge should have had regard to the real mischief that the tactic of early discontinuance represents in the low-value personal injury arena and the court needed to be astute to protect its court processes being used as an instrument of, or aid to, fraud in any way.

 

Black Antelope Law Partners Up With CrowdJustice

Black Antelope Law is pleased to announce that it has partnered up with the innovative lawtech company, CrowdJustice, as part of its continuing commitment to making high-quality legal services as accessible as possible.

CrowdJustice enables litigants to raise funds for legal fees and costs from friends, family and other supporters online. Funds can be raised publicly, by crowdfunding from a community of online supporters, or privately, through CrowdJustice Private, which enables them to set up a whip-round among their close network, with invitation-only access to their fundraising page. Funds raised can also be used to help litigants cover some of the risk of paying the other side’s legal costs if they lose.

Funds raised on CrowdJustice are transferred directly to our client account on the litigant’s behalf, which means that clients do not need to handle the administration of payments or deal with the compliance issues involved in holding funds. It also means that litigants can tell everyone donating that funds raised will be transferred directly to their lawyers’ client account, rather than to them personally.

Black Antelope Law, a winner of the CorporateLiveWire Innovation & Excellence Awards 2019, believes that this new partnership will be an exciting development for its business and consumer clients whilst also widening access to justice for those who wish to work with our lawyers but who have previously been unable to due to financial constraints and will complement its existing options for litigation funding.

 

 

Privacy Rights of Tenants When Enforcing Possession Orders

In Ali & Anor v Channel 5 Broadcasting Ltd [2019] EWCA Civ 677, the Court of Appeal was asked to consider the privacy rights of tenants when High Court Enforcement Officers (HCEOs) are filmed enforcing possession orders.

“Can’t Pay? We’ll Take It Away” is a popular Channel 5 series which records the work of High Court Enforcement Officers executing Writs of Possession. Footage is shown of HCEOs entering properties and evicting tenants who have fallen behind payments due under their tenancy.

The Court was told that the aim of the producer, Mr Brinkworth, was to raise public levels of awareness of the process and effects of enforcement and in particular, how possession can be expedited by enforcing County Court Orders in the High Court. Mr Brinkworth felt that a large number of tenants were unaware of this process and once proceedings had reached that stage, the tenants’ rights were very limited. He hoped to help the public appreciate the harsh reality and consequences of debt.

The story of Shakir Ali and Shahida Aslam, the Claimants in this matter is a perfect example of tenants who are ignorant of the expedited eviction process. When their eviction was filmed in 2015, Mr Ali appeared shocked and confused as he was under the impression that he had a lot longer to leave the property. He was woken up by the bailiffs entering his home just after 8am in the morning and was recorded looking rather flustered in his pyjamas and a vest top. Mr Ali and Mrs Aslam repeatedly told the film crew not to film, and Mr Ali even wrote a letter to Channel 5 objecting to the airing of the footage, particularly as his daughter was being bullied in school as a result of the eviction. However, Channel 5 decided to broadcast the programme.

Being faced with Bailiffs entering your home is a distressing experience, which understandably one would not want to share with 9.65 million viewers. Meanwhile, the Landlord’s son recorded two short videos of the eviction and published these on his social media accounts through which the Claimants’ friends and relatives became aware of the eviction.

Mr Ali and Mrs Aslam challenged the airing of footage displaying their eviction as a breach of the privacy rights of tenants. They did not complain about the broadcasting of the fact that they were being evicted but argued that the images conveying the claimants, their home and the details of the eviction amounted to a misuse of private information. During the episode not only was Mr Ali filmed in his pyjamas but shots were also aired of the family’s possessions in bags, their children’s bedrooms as well as a scene of the Landlord’s son humiliating the couple. The show revealed details of the Claimants’ financial situation (both being unemployed and in receipt of housing benefit).

Channel 5 defended the claim for damages on the basis that the claimants did not have a reasonable expectation of privacy in these circumstances, and if they did, this was outweighed by the right to freedom of expression due to the significant public interest in this matter. The High Court Judge found that the Claimants’ Article 8 rights to privacy had been engaged and the airing of what he considered to be “fairly sensitive” private information was not justified for the purpose of public interest. He awarded the Claimants £10,000 each in damages. In arriving at that figure, the Judge took into account the fact that the information was already in the public domain to a certain extent given the posting of the videos on social media. The Claimants appealed the amount of damages awarded and the Judge’s approach to arriving at the figure whilst the Channel 5 cross-appealed on the finding of liability. The Court of Appeal rejected both appeals and found that the amount awarded in damages to the Claimant was reasonable and also that the High Court Judge had correctly found that the tenants right to privacy outweighed the right to freedom of expression/the public interest.

Lessons learned:

  1. It is important to note that the filming of the eviction was not of itself considered an unlawful breach of the privacy rights of tenants nor was the broadcasting of the fact that the tenants had been evicted.
  2. Landlords need not be concerned if they have consented to and/or had an eviction filmed for the show as they are not liable in such proceedings (liability being with Channel 5 who broadcasted the programme)
  3. Landlords should, however, bear in mind that tenants, even those who fail to leave a property voluntarily within the time specified in a Possession Order still have a reasonable expectation of privacy.

Does this mean the end of one of Britain’s favourite shows? Channel 5 has no plans to stop the show as far as we are aware but will certainly need to tone down or adopt a less intrusive approach going forward if they want to avoid similar claims.

Innovator Visa Requirements and the Start-Up Visa

From the end of March 2019, the UK government has introduced the innovator visa for foreign entrepreneurs and officially closed the Tier 1 (Entrepreneur) category. The innovator visa is designed for experienced entrepreneurs who have £50,000 investment and for less experienced entrepreneurs, the start-up visa route has been created as an alternative (discussed below).

The requirements

Those applying for the innovator visa need to fulfil two sets of criteria, which are at Part W3 and Part W6 of the Immigration Rules.

The general requirements are:

·       Endorsement — by an approved body

·       £50,000 investment

·       Maintenance requirement — £945 in savings for 90 days, dependents £630 each

·       English language ability — test passed at level B2

·       Credibility assessment

·       Must be 18 years or above

·       None of the general grounds for refusal apply

·       Innovator must devote their entire time to the business (unlike start-up visa holders who can work elsewhere)

·       Successful applicants must pay the Immigration Health Surcharge

·       A criminal records certificate is needed for overseas applicants

·       The application costs — entry clearance is £1,021 and extensions £1,277

Switching from start-up visas and certain other work visa categories into the Innovator visa route is permitted. This visa may be curtailed if the endorsement is withdrawn or if the endorser loses its status as an endorsing body. A refusal of the visa can only be challenged by administrative review.

The £50,000 could be from any source, e.g. from the applicant, a third-party individual, the endorsing body, a UK organisation employing 10+ people, or a UK or overseas organisation with fewer than 10 employees plus a legal representative’s and bank letter.

UK start-up visa

From 29 March 2019 onwards, new applicants may apply for a ‘start-up’ visa. By introducing the ‘start-up’ visa, the UK government has replaced the Tier 1 (Graduate Entrepreneur) and intends to encourage the development of entrepreneurship in the UK to promote an improving economy.

Unlike the Tier 1 (Graduate Entrepreneur) route, new applicants for the purposes of obtaining the ‘start-up visa’ do not need to show that they have secured funds to invest into their business and can also apply from outside of the UK or switch from Tier 1 (Graduate Entrepreneur), Tier 2 and Tier 4 (General) (subject to certain restrictions). An interesting point to note that new applicants may also be able to switch from the visitor category if they have been undertaking permitted activities as a prospective entrepreneur.

Under the ‘Start-up- visa route, new applicants need to fulfil two sets of criteria, which are at Part W3 and Part W5 of the Immigration Rules.

Part W3 contains general requirements that also apply to other visas as a whole. A new applicant needs to be over 18 years of age and pass an English language test at the upper intermediate (B2) level.

A new Applicant will also need to meet a maintenance requirement by showing they have held £945 in savings over a 90-day period before they apply. However, they do not need to provide evidence of maintenance funds if the letter from their endorsing body confirms they have been awarded funding of at least £945.

Part W5 contains the requirement that the Applicant must be endorsed by an organisation that will assess the Applicant’s business idea. Much similar to the Tier 1 (Graduate Entrepreneur) Route, the start-up visa will outsource the assessments of business ideas to independent bodies familiar with supporting entrepreneurs. They will scrutinise an idea for its innovation, viability, and scalability. This will be the trickiest part of the application as a number of the organisations are not yet issuing endorsements.

The start-up visa, if granted to an Applicant, will be for a set period of two years, or the remaining balance of two years if the applicant has previously held leave in the Tier 1 (Graduate Entrepreneur) or start-up categories. At the end of the two years, the person can switch into the innovator category based on the same business idea, provided they can still obtain an endorsement.