In the recent case of Liverpool Victoria Insurance Co Ltd v Zafar, the Court of Appeal gave guidance on sentencing expert witnesses who are found guilty of contempt of court.
This case concerns an expert’s conduct in a personal injury claim brought by Mr Iqbal who was injured in a road traffic accident in December 2011.
The Respondent to the contempt proceedings was the expert who had been instructed by the Mr Iqbal’s solicitors to prepare a medical report on his injuries as expert evidence in his personal injury claim.
The court found that the expert, on the request of Mr Iqbal’s solicitor, subsequently revised his medical report to say that Mr Iqbal’s injuries were more severe and required a longer recovery time without re-examining Mr Iqbal or using independent professional judgment.
The expert filed a witness statement stating that the report was amended by his staff without his knowledge and, subsequently, a further statement changing his story that he amended the report as the original only dealt with Mr Iqbal’s acute symptoms.
Liverpool Victoria Insurance Co Ltd Limited (the Defendant insurance company in Mr Iqbal’s personal injury claim) brought proceedings under CPR32.1 for committal of the expert for contempt of Court for false statements made in the report and two witness statements on the basis that they were intended to interfere with or likely to interfere with the course justice.
The court at first instance found that the expert was guilty on 10 counts and sentenced to prison for 6 months, suspended for a period of 2 years.
Liverpool Victoria Insurance Company appealed to the Court of Appeal on the basis that the sentence was too lenient.
The Court of Appeal found that the sentencing had been too lenient however refused to impose a more severe sentence, rather using the case as an opportunity to give guidance for future cases involving sentencing for contempt of court.
In providing its guidance, the court stated that contempt by an expert witness is a serious offence, regardless of whether the false statement was made dishonestly or recklessly due to:
- The reliance the court and the parties place on expert evidence in the administration of justice; and
- The overriding duty experts owe to the court.
Generally, whilst a person guilty of reckless contempt would be less culpable than an intentionally dishonest one, when an expert witness is involved, the seriousness of a reckless false statement is aggravated by the fact that an expert is fully aware of the court’s reliance his statements.
When considering the length of committal, courts will need to consider the seriousness of false statement with mitigating factors which may include:
- Early admissions made before proceedings are commenced
- Cooperation with investigations
- Ill health
- Expressions of genuine remorse
- A previously unblemished good character
However when an expert witness is guilty of contempt the breach of trust placed in an expert witness by the court must be expected to result in a severe sanction being imposed. The court also noted that any delay will not be a relevant consideration in sentencing where such delay was outside the control of the guilty party.
The Court then set out that any reduction in sentence (by virtue of the existence any mitigating factor) should be reduced by a maximum of one third where an admission was made prior to issuing proceedings. Thereafter, any reduction should be on a sliding scale down to around 10% if an admission was made at trial.
Finally, the court decided that a custodial sentence would normally be appropriate unless there is powerful justification to allow a suspended sentence. The mere fact that a false statement was made recklessly is not a powerful factor favouring suspension.
This case stresses the importance of honest and independent expert evidence and the severe consequences for expert witnesses who breached the trust placed in them by the court.
Although this case related to the evidence of an expert witness it shows that other witnesses who are found to have lied in witness statements or in evidence are also likely to suffer severe sanctions.