Contempt and the required criminal standard - Bruce Samuel Montgomery v Carl Brown This case, in which Plexus, on behalf of Churchill health records from his former employer, a company Insurance, pursued a claim for contempt of court, called Oceaneering, but had received little in the way demonstrates that even where false statements are of formal reply until eventually an email was received made in documents bearing a Statement of Truth from Oceaneering just three days before the trial was that may not be sufficient to successfully obtain the due to commence. That email made it plain that the committal of an individual for contempt. A dishonest Claimant had in fact continued to work, mostly intent (proved to the criminal standard) to interfere abroad, since the accident, and had earned with the administration of the course of justice must substantial sums from doing so. It was apparent be proved. from this email that the bulk of the Claimant’s claim, as expressed in the schedules of loss in relation to The personal injury proceedings future loss of earnings, was simply not tenable. The Claimant (Bruce Montgomery) was involved in a During the course of the proceedings the Claimant road traffic accident that occurred on 22 February had served one Schedule (exclusive of general 2004. The Defendant (Carl Brown) was insured by damages) that exceeded £600,000. When Plexus Churchill Insurance. disclosed the documentation from Oceaneering the Claimant agreed to accept a pre action offer of It was conceded that as a result of the accident the £63,750 and additionally agreed to pay the Claimant sustained serious, and indeed life Defendant’s costs of the entire proceedings. threatening, injures. Liability was agreed pre issue on a 75/25 basis in the Claimant’s favour, the The contempt proceedings deduction for contributory negligence being made by reason of the Claimant’s failure to wear a seat belt. Following settlement of the personal injury action, Plexus, upon the instruction of Churchill Insurance, Upon the commencement of Court proceedings subsequently asked the High Court to list the matter Churchill Insurance instructed Plexus Law to act on for a hearing to consider the issue of apparent their behalf. The Claimant instructed a firm called contempt. Having heard submissions from both Osborne Morris Morgan (OMM). sides, Eady .J determined that there was evidence of a prima facie case of contempt of court and indicated At the time of the accident forming the subject matter that the matter should be referred to the Attorney of the proceedings the Claimant was working as a General. sub sea engineer. The case presented on his behalf by OMM was that following the accident he had been The Attorney General considered that whilst there unfit to do any work save for occasional off shore was a strong prima facie case, she was not of the work and some work for his father. view that it was appropriate for her to actually actively pursue the contempt proceedings herself. The suggestion that the Claimant had not really However, she did provide a letter to Plexus indicating worked post accident was seemingly maintained in that she supported, in principle, any proceedings that the proceedings in the following ways: Churchill might bring in respect of the alleged in a number of Schedules of Loss which bore contempt. Statements of Truth signed by his solicitors, With the support of this letter Plexus therefore OMM; returned to the High Court and sought permission to during examinations by a number of expert commence an action for contempt of court against witnesses instructed by both parties; Montgomery. Permission was granted and the contempt action proceeded. in a Witness Statement which bore a Statement of Truth which he himself signed; The Trial of the contempt matter came before Cox. J in the High Court on 19 April 2010. After a 3 day by reason of the fact that Montgomery failed to Trial she handed down a draft Judgment and invited provide disclosure of his post accident earnings in the parties’ comments. Upon reading the draft his list of documents. Judgment the Claimant’s solicitors volunteered that there was further disclosure (that had not been The personal injury claim proceeded in the usual provided to that point) which might have a bearing on way and was listed for trial in the High Court in the Judge’s findings. As a consequence the handing London in November 2008. down of Judgment was deferred. Instead the Court gave directions for further disclosure by Montgomery Plexus had repeatedly sought disclosure of the and for the filing of further affidavits, essentially Claimant’s personnel records and occupational addressing matters arising from that disclosure. Further evidence was subsequently heard by Cox .J explanation lay in the fact that he was depressed on 16 and 17 March 2011 and she subsequently and disengaged from the proceedings, with the handed down her Final Judgment. consequence that he did not give the document his adequate attention. Also, OMM had failed to The relevant law take adequate instructions concerning the issue of the claimant’s post accident work before they There was no real issue that the relevant law was to prepared the statement; be found in the CPR 32.4 (1), which states that proceedings for contempt of court may be brought Montgomery had not deliberately mislead the against a person if he makes, or causes to be made, expert witnesses who asked him about his post a false statement in a document verified in a accident work when they examined him in the Statement of Truth without an honest belief in its personal injury proceedings. The Judge found, truth and Malgar Limited v RE Leach inter alia, that: ”busy doctor can misinterpret (Engineering) Limited  FSR 393, in which the things said or summarise them inaccurately in following was said to be necessary to be proved to their reports”; obtain committal for contempt: Montgomery had signed forms of authority that the falsity of the statement in question; permitted the release of pay records by Oceaneering to Plexus. He was therefore always that the statement has, or if persisted in, it would aware that his true post accident pay situation be likely to have interfered with the course of would become known to the Court. justice in some material respect; and Conclusions that at the time it was made the maker of the statement had no honest belief in the truth of the Even where false statements are made in statement and knew of its likelihood to interfere documents bearing a Statement of Truth that may with the course of justice. not be sufficient to successfully obtain the committal of an individual for contempt. A dishonest intent The decision (proved to the criminal standard) to interfere with the Notwithstanding ‘some continuing unease’, the administration of the course of justice must be Judge decided that she could not be sure to the proved. That said, the decision seems inconsistent criminal standard of proof that Montgomery had with the finding of the Judge in MIB v Shikell  effectively acted dishonestly and deliberately EWHC 527, who found that a failure to read a attempted to mislead the court as to his post witness statement containing a falsehood, before accident earnings. In reaching that decision she signing it, could amount to a contempt of court. made the following findings of fact: Solicitors who sign Statements of Truth on their that OMM had signed schedules of loss without client’s behalf must ensure that they explain to their ever obtaining Montgomery’s authority to do so client, before signing the relevant document, that and without explaining the significance of the they not only explain the consequences of their Statement of Truth appended to such documents; doing so to the client but also ensure that they are duly authorised to do so. that although Montgomery had signed a list of documents which failed to disclose his post The decision, whilst disappointing, shows that accident earnings, OMM had failed to provide any insurers will continue to devote resources to adequate explanation as to the relevance and investigating cases of alleged fraud. It also shows importance of the list. Montgomery was, clearly that claimant solicitors must now clearly however, to be criticised for not reading the list advise their clients as to the implications when they before signing it; sign a Statement of Truth on their client's behalf or when their client signs this himself. Montgomery had signed a witness statement that bore a Statement of Truth that failed to disclose Bruce Montgomery v Carl Brown  EWHC his post accident work. However, the Judge 875 (QB) found that Montgomery had not read the April 2011 document before signing it. He was to be criticised for this but his intention had not been to deliberately mislead the Court. Part of the Contact details: Joanne Pizzala Duncan Wright Partner Solicitor DDI: 0844 245 4772 DDI: 0844 245 4773 E: email@example.com E: Duncan.firstname.lastname@example.org The content of this e-alert is merely informative and should not be relied upon as a substitute for legal advice. Plexus Law is a trading name of Parabis Law LLP, a limited liability partnership registered in England under number OC315763 and is regulated by the Solicitors Regulation Authority.
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