Kirk v Walton 3.4.09

A lawyer from Kennedys’ Manchester office was present in Court in Liverpool on Friday when Mr Justice Coulson gave his judgment in the contempt of Court proceedings in Kirk v Walton. The judgment followed a hearing lasting a number of days, in the course of which the Court heard detailed evidence from Mrs Kirk, her friends and family.  

The Judge concluded that Mrs Kirk was in contempt of court in respect of two of the allegations made against her. However, he did not consider it appropriate to impose a custodial sentence. He ordered her to pay a fine of £2,500.  

Implications  

  • Contempt of court proceedings can successfully be brought against claimants who exaggerate their claims, even where it is accepted there has been an injury, liability admitted and a payment has been made.  
  • Defendants and insurers should have systems in place for identifying cases where contempt of court proceedings could be brought.  
  • The defendant will have to prove its case beyond reasonable doubt; strong evidence will be needed.  
  • Contempt of court proceedings are a useful way of reinforcing the message to claimants that defendants and their insurers will take action against fraudulent behaviour.  

Background  

On 14 September 2001, Joanne Kirk was involved in a minor road traffic accident with Carol Walton’s 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 Kirk’s 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, Ms Walton’s 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, wrote a report on behalf of Mrs Kirk, 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 the 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 five months after the action was settled, Ms Walton’s solicitors applied to the High Court for permission to bring proceedings against Mrs Kirk 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 were heard by Mr Justice Coulson in the Queen’s 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 pre and post accident condition.

 Coulson J gave consideration to the decision of Mr Justice Silber in the case of Caerphilly County Borough Council v 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 each fined £1,500, having signed false statements.

Mrs Kirk’s 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 two allegations which he considered amounted to contempt. These were in relation to Mrs Kirk’s response to Part 18 questions which focused on her pre-accident level of disability and her application for state benefits.  
  • He 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 Kirk’s physical and emotional state.  
  • However, it was necessary to mark such conduct with a necessary deterrent and on this basis Mrs Kirk 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 Walton’s costs.  

Comment  

On the positive side the contempt of court proceedings were partly successful. However, defendants and insurers will be disappointed that the findings of contempt were not more widespread and that the penalty imposed was not greater. The real message of the judgment is that strong evidence is required to prove any contempt but, where it is proved, the court will take action and impose a penalty upon the exaggerating claimant. It would have been interesting to see what the penalty for contempt (and costs) would have been had Ms Walton been successful on more of her allegations of contempt.  

It should not be forgotten that with regard to the original personal injury claim itself Mrs Kirk accepted a settlement of her claim for a fraction of the amount claimed. Further once the costs are taken into account Mrs Kirk will not have gained anything as a result of her claim.