Personal Injury

The statement of truth really matters

Contempt of court should lead to an immediate prison sentence: Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392.

Dr Zafar produces 5000 medico-legal reports per year. On this occasion, he reported on a claimant who had suffered one week of whiplash, and fully recovered thereafter. At the behest of the solicitor, the report (with the usual statements of truth and independence) was rewritten to say that the symptoms persisted, and gave a 6-8 month prognosis. These falsehoods were found to have been made recklessly rather than deliberately, as a result of the “industrialisation” of Dr Zafar’s medico-legal practice; he had not cared whether or not the court was misled.

When the deception was uncovered, further falsehoods followed, again supported by statements of truth. Convicted of contempt of court, he was sentenced to six months’ imprisonment, suspended for two years.

On appeal this was held to be unduly lenient; any sentence less than 9 months’ immediate imprisonment was inappropriately light.

There is a special circle of hell reserved for guilty experts, because of the reliance placed on expert witnesses, and because of the corresponding importance of the overriding duty which experts owe to the court:

... 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. ... To abuse the trust placed in an expert witness by putting forward a statement which is in fact false, not caring whether it be true or not, is usually almost as serious a contempt of court as telling a deliberate lie.

However, the court’s conclusions apply to all such statements, whether by litigants, lawyers or experts:

... the deliberate or reckless making of a false statement in a document verified by a statement of truth will usually be so inherently serious that nothing other than an order for committal to prison will be sufficient. That is so 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.

One for all litigants and litigators to be aware of.

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