Contempt and the required criminal standing - Bruce Samuel by gdf57j

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									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 [2000] 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 [2011]
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 [2011] 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: joanne.pizzala@plexuslaw.co.uk              E: Duncan.wright@plexuslaw.co.uk

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Plexus Law is a trading name of Parabis Law LLP, a limited liability partnership registered in England under number OC315763 and is
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