Liverpool Victoria Insurance Company Limited v Dr Asef Zafar [2019] EWCA 392 (Civ) -and- George Eliot Hospital NHS Trust v Elder (2019), QBD, 5 April 2019

Introduction

Dr Zafar ran his own medico-legal company, producing over 500 expert reports a year. In February 2012, he examined Mr Iqbal 11 weeks after a road traffic accident. The other driver involved was insured by Liverpool Victoria Insurance Company Limited (‘LVI’). Dr Zafar concluded that having taken analgesia immediately after the accident, Mr Iqbal had made a complete recovery within one week of the accident. Dr Zafar signed this report with a statement of truth, in accordance with CPR Part 35.

The instructing solicitor then asked Dr Zafar if he could amend the report to reflect that Mr Iqbal had ongoing moderate to severe pain in his neck and shoulders. He requested Dr Zafar review his examination notes, and in light of this ongoing pain amend his report to the effect that Mr Iqbal would recover over the next six to eight months. Without any further re-examination of Mr Iqbal, Dr Zafar obliged. Although the content of the expert report changed, the report date remained the same, as did the statement of truth.

Unfortunately for Dr Zafar, an unwitting paralegal included the original report in the court bundle, and Dr Zafar was undone. He initially claimed (in a witness statement, signed with a statement of truth) that the instructing solicitor had made the amendments without his permission. He then resiled from that position and claimed that he had reconsidered his expert view, and that the second report was the correct one. So followed a claim for contempt of court, with 16 allegations levelled against Dr Zafar. The judge found that Dr Zafar had been dishonest in respect of one allegation, and reckless in respect of a number more. He concluded that the conduct of Dr Zafar, whilst not as blameworthy as that of the instructing solicitor, was so serious that only a custodial sentence could be justified, the least possible term being one of six months.

LVI appealed on the basis that the sentence was too lenient, and the judge had failed to properly apply the principles set out in South Wales Fire and Rescue Service v Smith [2011] EWHC 1749 (Admin). LVI argued that, as an expert to the court, Dr Zafar’s misconduct was so serious that he should have received an immediate prison sentence, for a longer term [27]. Unsurprisingly, counsel for Dr Zafar argued that the judge had “directed himself impeccably” [29].

The Court of Appeal reminded itself that it was limited to a review of the decision of the lower court. It set out the obligations of an expert under CPR 35 and PD35, including that their overriding duty is to the court, and the content of their report should be governed by this duty [33]. The Court of Appeal reiterated the rules providing that falsely verifying a statement of truth is contempt of court [35]. They noted that the principal penalties for contempt of court are a fine or committal to prison, although a term of committal is not the same as a prison sentence [39].

The court ruled that contempt of court by way of a false statement of truth may be deliberate or reckless, but that it “will usually be so inherently serious that nothing other than an order for committal to prison will be sufficient” [59]. Importantly, the court stressed that this principle applies:

whether the contemnor is a claimant seeking to support a spurious or exaggerated claim, a lay witness seeking to provide evidence in support of such a claim, or an expert witness putting forward an opinion without an honest belief in its truth” [59] (emphasis added).

The significance of an expert lying to the court, recklessly or otherwise, is that the court and the parties are dependent on the truth of the expert’s report. It is an explicit breach of the expert’s duty to the court, and an abuse of trust [61]. Accordingly, “an expert witness who recklessly makes a false statement in a report or witness statement verified by a statement of truth will usually be almost as culpable as an expert witness who does so intentionally” [61] (emphasis added). In this instance, not only had Dr Zafar lied in respect of the second report, but he had sought to cover up his lie with his witness statement. The Court of Appeal considered that this significantly increased his culpability [63].

Having determined that committal was the only appropriate sanction, the court recognised the need to balance aggravating and mitigating factors. In particular, they noted that the approach to committals should be consistent with the approach taken in criminal cases pursuant to the Sentencing Council’s definitive guideline, that a “maximum reduction of one-third…will only be appropriate where conduct constituting the contempt of court has been admitted as soon as proceedings are commenced. Thereafter, any reduction should be on a sliding scale down to about 10% where an admission is made at trial” [68] (emphasis added).

In the case of an expert who has lied to the court (as opposed to a lay witness) the court held that “the appropriate term will usually have to be served immediately” [69]. For Dr Zafar, the Court of Appeal thought that he should have faced a much longer sentence, and immediate committal. His dishonesty and recklessness with the truth was financially motivated, repeatedly perpetuated and deliberate. He also sought to cover up his lies either by blaming a third party, or lying further. These were all aggravating features bringing his conduct close to if not into the realm of dishonesty [73]. Despite this, the Court of Appeal decided to not impose a more severe sentence, as this judgment provided guidance that had not been available to the lower court judge.

The decision of the Court of Appeal has since been applied in a case brought against a lay witness, in a decision that will unsettle every clinical negligence practitioner. In George Eliot Hospital NHS Trust v Elder (2019), QBD, 5 April 2019 (unreported), Lesley Elder had undergone treatment to relieve incontinence. She subsequently claimed that the surgery had been unnecessary and inappropriate and that she had not given informed consent. The Trust admitted liability and Ms Elder sought damages of £2.5 million.

Ms Elder claimed, among other things, that her movement was restricted, that she was socially isolated, and reliant on others for basic domestic assistance. These claims were contradicted when the Trust produced video surveillance and photographic evidence showing her shopping, walking her dog, and partying at a hen-do in Ibiza.

Whilst the court recognised Ms Elder had in fact suffered harm from negligence, her claim for damages of £2.5m was so grossly exaggerated as to be dishonest. She had lied in her particulars of claim, had lied in her evidence to the experts, and had dishonestly signed her statements of truth. Walden-Smith J found that her contempt of court was exacerbated by the fact that she had attempted to defraud the NHS, a public organisation that desperately needed this money to fund frontline services. Applying Liverpool Victoria Insurance Company Limited v Dr Asef Zafar [2019] EWCA 392 (Civ), Walden-Smith J ordered the immediate committal of Ms Elder for a period of five months, despite awarding her damages of £120,000.

These two decisions provide an important reminder to practitioners, experts, and lay witnesses of the fundamental importance of truthfulness.

Before signing any statement of truth, we must remind the person signing not only that they must be sure that the contents of that document are true to the best of their knowledge and belief, but that they can expect to end up in prison if they sign a statement of truth attached to a document which they know to be untrue. The case of Elder is a reminder (if one were needed) to all clinical negligence practitioners that the Courts will come down harder on Claimants who are proved to have acted dishonestly in order to try to achieve greater compensation from the NHS.