Horwich Farrelly, the leading insurance industry law firm, in conjunction with LV=, one of the UK’s largest car insurers, has successfully appealed a decision of the High Court, who gave a doctor found in contempt of court a suspended sentence of six months whilst, in contrast, sentenced a solicitor who committed the same offence in the same case, 15 months in jail.
The decision provides clear guidance in a number of areas: that contempt by an expert witness is more serious than that committed by a litigant; that reckless contempt by an expert witness is almost as serious as deliberate contempt; and the fact that an expert witness has brought ruin on themselves is no reason not to impose a significant term of committal.
In October 2018, Dr Asef Zafar was found guilty of contempt of court after presenting spurious medical documents on behalf of a claimant as evidence in a personal injury insurance claim. The deception came to light when the law firm accidentally submitted both the real report (stating an injury of one week) and the altered one (claiming six to eight months of pain).
At the time, Mr Justice Garnham said that by investigating the fraud: “LV= had done the Court a service,” in exposing the deception of both the doctor, and the solicitor, Mr Kamar Khan. He added that: “… critical to the operation of our system of justice is the trust that courts have to place in solicitor and expert witnesses. Those who make false claims should expect to go to prison. Solicitors and expert witnesses who act dishonestly in the evidence they give to the court, whether in support of such claims or otherwise, must expect a similar outcome.”
Contrary to this statement however, and despite Mr Khan receiving a 15-month custodial sentence, Mr Justice Garnham granted Dr Zafar a suspended sentence.
LV= objected to this on the grounds that, due to its leniency, the decision set a very concerning precedent. In their view there was no doubt that, like Mr Khan, Dr Zafar should have immediately been sent to prison. Further, they stressed that, unless this decision was overturned, it would be used as a precedent in other cases where contempt was committed and that those who lied would also only receive a suspended sentence.
In overturning Mr Justice Garnham’s decision, the Court of Appeal stated that: “…with all respect to the judge…we are satisfied that the order for committal in this case was wrong in two respects.
“First, the term of committal should have been significantly longer than six months, even taking into account the mitigation available to the Respondent,
“Secondly, the term should have been ordered to be served immediately, there being no powerful factor in favour of suspending it. We are satisfied that a suspended term of six months fell outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.”
As well as ruling Dr Zafar should pay LV=’s costs, of at least six figures, the Court also confirmed that the contemnor cannot rely on the delay in the conclusion of proceedings where they could have made admissions sooner and that the starting point for contempt’s of this nature is 9-12 months imprisonment.
Commenting on the case, Martin Milliner, Director of Claims at LV=, said: ““This is a fantastic outcome which has sent shockwaves through the system and provides a clear framework for the future that professional enablers should be very afraid of.
“The Court of Appeal has agreed with us that contempt from an ‘expert’ is even more serious than a litigant contempt, and we hope that this ruling deters unscrupulous doctors and lawyers from engaging in this fraudulent practise.”
Ronan McCann, Managing Partner at Horwich Farrelly, added: “We are extremely pleased that LV= decided to make a stand in this case and that the Court Of Appeal duly handed down very strong guidelines in what is a hugely significant precedent for the insurance industry.
“It should now be very clear to all fraudsters, including expert witnesses, that if they lie in bringing a fraudulent claim then the most likely outcome is a significant prison sentence as well as a significant liability for costs.
“The Court of Appeal has poured cold water on formulaic mitigation, the delay in proceedings, or the suggestion that being reckless is not as significant as outright dishonesty. No longer will courts be able to rely on these points to suspend a sentence.”