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May 18, 2021

False Statements

This week’s bulletin considers when contempt proceedings under CPR 81 (also referred to as ‘committal proceedings’) can be brought against someone for the making of a false statement and the process to be adopted in bringing such proceedings. This includes when permission is required to make such an application, and when the court is likely to grant such permission, and the timing of such an application. It also considers what must be proved for the contempt application to be successful.

Permission from the court is required

Permission from the court is required where the committal application is made in relation to knowingly making a false statement in any affidavit, affirmation or other document verified by a statement of truth or in a disclosure statement (CPR 81.3(5)(b)). It is common in contempt cases that a particular allegation may straddle more than one type of contempt, such as false statements and interference with the due administration of justice. In such circumstances a cautious approach should be adopted and permission sought, even if the same allegation ‘could’ be phrased as either false statements or interference with justice (see Cole v Carpenter [2020] EWHC 3155 (Ch)). The court is likely to take a dim view of a tactical ‘labelling’ of a particular allegation so as to avoid the protections within the CPR.

Haederle v Thomas [2016] Lexis Citation 693 confirms that an unsigned affidavit is still an affidavit for these purposes, since the essential ingredient of an affidavit is that the party has sworn an oath as to the truth of its contents. As such, the person would be liable for committal if the contents were false.

It is not appropriate to seek permission for committal in respect of false statements in witness statements which have already been placed before a court, have been considered, and the arguments available as to why it is said that elements of it are not true were all available at the time of the hearing to the person who now seeks the permission (Ergun v Smith [2015] EWHC 2494 (QB)).

If a claimant discontinues a claim as soon as the dishonesty is discovered, this is not a bar to permission to bring committal proceedings but is a factor to be taken into account (Zurich Insurance v Romaine [2019] EWCA Civ 851). However in Zurich the Court of Appeal, in granting permission to bring committal proceedings, held that a stratagem of early discontinuance should not be seen to be used by unscrupulous claimants or lawyers in low-value high-volume personal injury claims as an inviolable means of protecting themselves from the consequences of their dishonest conduct.

Strong case required for permission to be granted

The primary authority which examines the factors that a court should take into account in deciding whether to grant permission to bring committal proceedings in respect of a false statement is KJM Superbikes v Hinton [2008] EWCA Civ 1280. In this case, the court stated that, 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

As the committal application is to be submitted at the same time as the permission application (CPR 81.3(6)), it is insufficient simply to reference the statement of truth as being false; you must identify each statement contained within the witness statement or pleading, etc. which you consider is false and which you assert was known by the maker to be false at the time it was made and explain the basis for your assertion as to why the maker knew it was false (Berry Piling Systems v Sheer Projects [2013] EWHC 347 (TCC)). In JTR v HNL [2015] EWHC 2298 (QB), the claimant submitted a ‘schedule of false statements’. This may be a useful form in which to present the allegations, however you should ensure that the allegations are concise and precise and each allegation supported by formal evidence. Any allegations which are too generalised or vague will likely not be allowed.

In Liverpool Victoria Insurance v Khan [2016] EWHC 1212, in 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’ (para [37]). It is necessary to establish a strong prima facie case that the party in question knowingly made false statements, or at least made them reckless as to their truth (Green v Hurst [2020] EWHC 937 (Ch) at [38]).

However, note, in the same case (Liverpool Victoria v Khan) but a separate, previous hearing in the proceedings (in May 2016), the court had been concerned that ‘matters had not been dealt with with sufficient particularity to enable [the defendant] to understand precisely the case being made against him’ (para [5]). This decision also makes it clear that any allegations of a subsequent cover-up are ‘potentially as serious as the central allegations with regard to the initial false statement’ and, therefore, ought to form part of the permission application rather than, as contended by the defendant, only be considered if and when the allegations of a false report to the court have been made out (paras [9] and [10]).

For an example of a ‘misconceived’ application for permission to bring committal proceedings where, among other things, the court which had determined the substantive claim had rejected the case made by the parties now alleging contempt (i.e. had effectively found the claimant to have lied in the substantive claim), see the decision in Chaudhry v Harper [2016] EWHC 2366 (QB).

For an example of where an application for permission was successful, see Walsh v Decca Capital [2020] EWHC 3475 (Ch). In Walsh, the court gave permission for the claimant to bring contempt proceedings against Mr Walsh in respect of allegedly untruthful statements made in a witness statement supported by a statement of truth signed by Mr Walsh, on the basis that there was a strong prima facie case that the statement was false. As to whether it was in the public interest for there to be contempt proceedings, the court considered that the allegation was highly material and that there would be little overlap between the issues raised in any contempt proceedings and the trial such that the contempt application could be heard without interfering with the progress of the substantive claim. Whilst there had been a significant delay in bringing the application, no prejudice was caused by the delay.

Obtaining permission—a public interest test

In KJM Superbikes, referencing the earlier authority of Malgar v RE Leach [1999] Lexis Citation 3122, the court made specific reference to the strong public policy grounds for pursuing contempt proceedings in false statement cases, stating:

‘…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 necessarily a strong public interest in preserving the sanctity of the statement of truth on pleadings or statements.

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 you wanted a single, 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 v Sheer Projects (above). Also see Newson-Smith v Al Zawawi [2017] EWHC 1876 (QB) in which the court set out a summary of the factors the court should consider relevant to the assessment of the public interest in any given case. The ‘great caution’ urged in KJM Superbikes was applied in Gavigan v Norton [2020] EWHC 2583 (QB).

Pre-action false statements

The reference to ‘any’ in ‘any affidavit, affirmation or other document verified by a statement of truth…’ in CPR 81.3(5)(b), reflects the clarification of the law following Jet 2 Holidays v Hughes [2019] EWCA Civ 1858, to ensure that false statements made pre-action will also be subject to committal proceedings. The reference to pre-action statements is also reflected in CPR 32.14.

In Jet 2, the Court of Appeal held that ‘a witness statement verified by a statement of truth made by a prospective claimant before the commencement of proceedings in purported compliance with a pre-action protocol…can give rise to contempt and be the subject of an application for committal for contempt’ without a subsequent claim (see para [3]). The court stated that it has an inherent power to commit for contempt and that the ‘test at common law is whether the conduct in question involved an interference with the due administration of justice either in a particular case or more generally as a continuing process’ (see para [29]). The court held that a dishonest witness statement served in purported compliance with a pre-action protocol was ‘capable of interfering with the due administration of justice for the purposes of engaging the jurisdiction to commit for contempt’ because pre-action protocols are now ‘an integral and highly important part of litigation architecture’ (at para [36]).

Changes to the wording of the statement of truth with effect from 6 April 2020 added a warning to the effect that the statement maker understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without honest belief in its truth.

The committal application and CPR 32.14

If you are successful in obtaining the court’s permission, the court will continue with the hearing of the committal application (CPR 81.3(6)).

The law and process for the bringing of committal proceedings in relation to false statements is governed by CPR 32.14 and CPR 81.3(5)(b). A foundation stone authority in this area is Walton v Kirk [2009] EWHC 703 (QB) but it should be remembered that it predates the 1 October 2020 version of CPR 81. However, Cole v Carpenter [2020] EWHC 3155 (Ch) suggests that the 1 October 2020 changes do not materially affect the law and applicable tests in this area. Cole itself undertakes a thorough summary of applicable principles and is a useful, contemporary, authority.

CPR 32.14 provides (with effect from 1 October 2020):

‘Proceedings for contempt of court may be brought against a person who makes, or causes to be made, a false statement in a document, prepared in anticipation of or during proceedings and verified by a statement of truth without an honest belief in its truth.’

When to commence contempt proceedings

It is tempting if (having reviewed the papers) you conclude that you 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 in respect of false statements, they must warn the opposing party of their intention to do so promptly.

In GB Minerals Holdings v Short [2015] EWHC 1387 (TCC), the court quoted heavily from the judgment in KJM Superbikes v Hinton [2008] EWCA Civ 1280. 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.’

Practical tip: you will have to weigh up whether the value of the ‘trap’ outweighs the desire to bring committal proceedings.

When should the contempt hearing be heard?

For the most part, this question should not cause 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. This was the position in TBD (Owen Holland) v Simons [2020] EWCA Civ 1182, in which the Court of Appeal quoted David Richards J (as he then was) in Daltel Europe v Makki [2005] EWHC 749 (Ch), when he said:

‘Allegations that statements of case and witness statements contain deliberately false statements are by no means uncommon and, in a fair number of cases, the allegations are well-founded. If parties thought that they could gain an advantage by singling out these statements and making them the subject of a committal application, the usual process of litigation would be seriously disrupted. In general the proper time for determining the truth or falsity of these statements is at trial, when all the relevant issues of fact are before the court and the statements can be considered against the totality of the evidence. Further, the court will then decide all the issues according to the civil standard of proof and will not be applying the criminal standard to isolated issues, as must happen on an application under CPR Part 32.14.’

In TBD, the Court of Appeal concluded that the application for permission to issue committal proceedings in respect of the false statements was premature, it having been made before the trial, because the issues would be dealt with at trial and also the parties would have the advantage of the judge’s findings if the matter was dealt with after trial. As such, the Court of Appeal allowed an appeal against a decision of HHJ Keyser QC (TBD (Owen Holland) Ltd v Simons [2019] EWHC 2390 (Ch)) to only adjourn the ‘premature’ permission application until after trial, instead of dismissing it (see paras [237] to [238] of the Court of Appeal decision). As it transpired, it was not necessary for the Court of Appeal to consider whether the permission application should have in fact been dismissed rather than ‘merely’ adjourned, since the permission to issue the committal proceedings had already been revoked by Smith J at a later hearing (TBD (Owen Holland) Ltd v Simons [2020] EWHC 30 (Ch)) for different reasons, being that material on which the committal proceedings was based had been obtained improperly and in breach of a search order (and this aspect was upheld by the Court of Appeal).

Also see Cole v Carpenter [2020] EWHC 3155 (Ch), where the court declined to hear contempt proceedings regarding false statements prior to trial on the basis that ‘once the trial has concluded it will be possible for the court to adopt a more clear-sighted view of the true significance of what occurred…’. The court found the application to be disproportionate and contrary to the overriding objective. The court, in coming to its conclusion, observed at para [78] that no authorities had been drawn to the court’s attention where a false statement contempt had been determined prior to trial in similar circumstances. Unfortunately, this isn’t quite right. The hearing in Cole took place on 12 November 2020 while the judgment in Advetec Holdings v Shaw [2020] EWHC 2660 (QB) was handed down 9 October 2020 and the court in Advetec did conclude that in this ‘exceptional case’ the contempt allegations should be concluded prior to the main trial. Despite this small error, Cole remains a fair summary of the law and should be read in conjunction with Advetec.

For a further case on timings, see North of England Coachworks v Khan [2020] EWHC 2596 (QB), where the contempt application was also dealt with at an interim stage.

In Walsh v Decca Capital [2020] EWHC 3475 (Ch), the court gave permission to bring contempt proceedings at least a year before the trial was likely to take place. As to when the contempt proceedings should be heard, the court stated that if ‘dishonesty in a witness statement or statement of case is so serious that it merits a contempt application, the public interest is not served by delaying the disposal of that application for a year or more’ (as would have been the case if the matter was delayed until trial). The court stated that it would also be unsatisfactory for the matter to hang over the defendant for that long, and potentially impact the evidence to be given at trial.

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 its 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

Walton v Kirk [2009] EWHC 703 (QB), adopting the principles set out in the High Court decision of Caerphilly County Borough Council v Hughes (unreported, 6 December 2005, Mr Justice Silber) confirms that the onus is on the claimant to prove the necessary ingredients. It also confirms 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 test is also articulated in Axa Insurance v Rossiter [2013] EWHC 3805 (QB) and the more recent case of Shelley v The Estate of Christopher Trevor Norman [2021] EWHC 975 (QB), albeit in a slightly different form.

The clear distinction between the civil and criminal standard of proof is well illustrated in Zurich Insurance v Barnicoat [2020] EWHC 3127 (QB).

In Liverpool Victoria Insurance Company v Khan [2018] EWHC 2581 (QB), the court noted that when assessing the factual evidence to determine whether a false statement has been made, the court will take into account the ‘good character’ of a defendant when considering whether to accept the defendant’s evidence, since the fact that a defendant has not offended in the past may make it less likely that they acted as is now alleged against them. However, the fact that a defendant has committed contempt of court in the past does not prove that they did so on the occasion in question.

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 the decision in JTR v HNL [2015] EWHC 2298 (QB), though this needs to be modified by the post-1 October 2020 requirements of CPR 81.4(2)(a)–(s) (which was not in force when JTR was decided).

In JTR v HNL, though ultimately unsuccessful, the claimant served a ‘schedule of false statements’. The court described the presentation of the schedule as:

‘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.’

Practical tip: it is suggested that by adopting this Scott-schedule type approach the claimant can present the specifics of the individual contempts complained of in a very clear, straightforward fashion. Such an approach can be combined with the application requirements set out at CPR 81.4(2).

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 out right falsity, the court may not consider this to be a contempt or alternatively, may not deem it to satisfy the public interest test.

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.

Two authorities neatly encapsulate the tension in a court’s decision making as between exaggeration and lies. The court in Axa Insurance v Rossiter [2013] EWHC 3805 (QB) did not find dishonesty and stated ‘some exaggeration might be natural, even understandable…’ while in Brighton & Hove Bus & Coach v Brooks [2011] EWHC 2504 (Admin), the court 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 (Zurich Insurance v Kay [2014] EWHC 2734 (QB)).

However, dishonesty is only one basis for a finding of contempt and the contempt can also be based on recklessness (Liverpool Victoria Insurance Company v Khan [2018] EWHC 2581 (QB)). In Liverpool Victoria Insurance Company v Khan, a medical expert was found guilty of contempt despite the court not finding that the expert was dishonest. It was sufficient for the finding that the expert allowed amendments to be made to the expert report ‘not caring whether they were true or false, and not caring whether or not the court was misled as a result’ (applying Berry Piling Systems v Sheer Projects [2013] EWHC 347 (TCC)). However, carelessness in the making of statements will not be sufficient to establish that a party deliberately or recklessly made a misstatement (Berry Piling Systems v Sheer Projects).

Richard Shepherd
Alex West