In Zurich Insurance Plc v Romaine  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 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:
- 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.
- 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.
- The court at the permission stage must give reasons but should be careful to avoid prejudicing the outcome of the full hearing.
- Only limited weight should be attached to the likely penalty.
- 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.
- Ultimately, the only question is whether it is in the public interest for contempt proceedings to be brought.
- 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.
- The court should consider whether the contempt proceedings would justify the resources which would have to be devoted to them.
- The court should have regard to whether proceedings would further the overriding objective.
- The penalty which the contempt, if proved, might attract plays a part in assessing the public interest in bringing proceedings.
At , 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 .
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 .
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.