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MALINGERING CLAIMANT IN CONTEMPT OF COURT

KIRK VS WALTON (2009) EWHC 703 (Queens Bench Division)

On 14 September 2001, Joanne Kirk was involved in a minor road traffic accident with Carol Waltons vehicle. Liability was not disputed. As a result, Mrs Kirk sustained injuries which were reported to be severe, deteriorating to a point where, in October 2002, she could no longer work.

In January 2005, Mrs Kirks solicitors served their Schedule of Special Damages. The total compensation sought exceeded 800,000 with substantial sums being claimed for past and future loss of earnings and care and assistance. In response, MsWaltons representatives made a payment into Court in February 2005 of 25,000. This offer was not accepted.

Both parties instructed medical experts and reports were exchanged. Dr McKenna, a Consultant Physician and Rheumatologist, prepared a report on behalf of MrsKirk, which concluded that she had developed Fibromyalgia and was significantly disabled. In her witness statement, Mrs Kirk said that she found it difficult to climb stairs; had weaknesses in her hands, wrists, arms, knees, shoulders and elbows; required a wheelchair and/or elbow crutches; was unable to drive a manual car; and could not go shopping unaided.

However, video surveillance showed Mrs Kirk continuing in her everyday life without any apparent difficulties. In light of the surveillance evidence, Mrs Kirk agreed to accept the payment into Court out of time.

HIGH COURT APPLICATION

The Civil Procedure Rules allow Proceedings to be brought against someone for contempt of Court if they make a false statement in a document verified by a Statement of Truth without believing the facts stated in it to be true.

In November 2007, approximately 5 months after the action was settled, MsWaltons solicitors applied to the High Court for permission to bring Proceedings against MrsKirk for contempt of Court. The Judge concluded that the evidence was sufficiently contemporaneous, representative and consistent to merit a full investigation. It was also in the public interest to bring Proceedings.

CONTEMPT OF COURT

The contempt of Court Proceedings was heard by Mr Justice Coulson in the Queens Bench Division of the High Court in Liverpool on 23 March 2009. Mrs Kirk was subject to close cross-examination and a number of her family and friends also gave evidence in relation to her plea and post-accident condition.

Coulson J gave consideration to the decision of Mr Justice Silber in the case of Caerphilly County Borough Council vs Hughes and others (2005). In Caerphilly, the claimant alleged that he sustained an injury as a result of a defective area of pavement. It was shown that in fact he sustained the injury playing football. He was convicted of contempt and sentenced to 14 days in prison, with a Costs Order against him of 15,000. Two witnesses were also fined 1,500 having signed false statements.

Mrs Kirks representatives argued that this case should be distinguished from Caerphilly given that there was no doubt that Mrs Kirk had sustained an injury and was entitled to some damages. However, it was submitted on behalf of Ms Walton that, whilst it was not her case that Mrs Kirk was wholly fit, she had exaggerated her disability to such a degree that it represented a contempt of Court.

DECISION

Coulson J reviewed all the allegations made against Mrs Kirk, but rejected the vast bulk of these, giving Mrs Kirk the benefit of the doubt.

There were, however, two allegations which he considered amounted to contempt. These were in relation to Mrs Kirks response to Part 18 questions which focused on her pre-accident level of disability and her application for State Benefits.

Coulson J did not consider this was a case where it was appropriate to impose a custodial sentence, since this would not be proportionate and was not appropriate given Mrs Kirks physical and emotional state. However, it was considered appropriate to mark such conduct with a necessary deterrent and, on this base, MrsKirk was ordered to pay 2,500 for her contempt.

In relation to costs, given that Ms Walton had been unsuccessful in relation to a number of allegations, Mrs Kirk was only ordered to pay 50% of Ms Waltons costs.

Mrs Kirks legal expenses cover had withdrawn and those costs and subsequent costs of her defending the contempt proceedings are believed to have been approx. 125,000. On top of this, there was an order for the recovery of 50% of the Applicants contempt costs. This will likely severely impact upon Mrs Kirks financial position for many years to come.

The above case represents and serves to support the continuing efforts of the Insureds industry to counter fraud initiatives. Anyone considering committing fraud should bear in mind that they face very serious consequences.

3 April 2009