In my blog on 21 April 2022, I summarised the decision of the Court in the case of Natasha Colley, a contempt of Court committed by the Claimant’s mother and Litigation Friend. This blog focuses on a further judgment for contempt: North Bristol NHS Trust -v- White. The case concerns a claim for clinical negligence for Cauda Equina Syndrome where the Claimant exaggerated the extent of her injuries.

The parties in Miss White’s claim reached agreement in relation to liability – they agreed the Defendant pay 50% of the value of Miss White’s claim. The settlement covered causation of Miss White’s Cauda Equina Syndrome but did not cover the extent of symptoms said to have been caused by the Defendant.

Miss White valued her claim, in her Schedule of Loss, at £4.1 million plus a sum for general damages for pain and suffering. Following receipt of the Schedule of Loss, the North Bristol NHS Trust instructed surveillance agents to video Miss White to access her level of mobility and capabilities while out of the house. The surveillance video footage showed Miss White visiting supermarkets, getting in and out of her car freely and easily, walking without any apparent limp, slowness or disability. She was also seen bending down and sorting clothes in the back of her car.

North Bristol NHS Trust served its Counter Schedule pleading fundamental dishonesty and quantified the claim at around £34,000 plus general damages for pain and suffering. The Trust also issued an application to strike out Miss White’s claim.

The strike out application was heard by His Honour Judge Gore QC who struck out Miss White’s claim for her failure to comply with Court directions, and ordered her to repay interim payments of damages totalling £45,000.

North Bristol NHS Trust then commenced contempt proceedings and the night before the hearing Miss White agreed a clarified set of admissions acknowledging that:

1. She told her pain management expert that “she was unable to walk for 20 steps before having to stop; if she did not use a crutch she was only able to hobble”.

2. She told her care expert that “she could not walk for 10 metres before stopping; she could climb slowly if she stopped every three steps; she could drive for 20 minutes; she used a crutch outdoors; she was unable to move from kneeling to standing; she required supervision in the shower and assistance with her shoes and socks.”

3. She told her OT expert that “when she went out she used one crutch; she had extreme difficulty with kneeling, squatting or working at low levels; she found it extremely difficult to get down on to the floor to play with her son.”

4. She told her neurosurgical expert that “outside she walked with an elbow crutch; she could walk for 10-20 steps before needing to stop and rest; she could not get in and out of the bath.”

In a witness statement produced following receipt of the surveillance evidence Miss White maintained her that she had not been dishonest. She stood by her previous comments on the extent to which her disabilities restricted daily living and impacted upon her personal care needs.

The committal for contempt was heard by Mr Justice Ritchie on 24, 25 and 26 May 2022. Ritchie J made a finding of fact that between May 2018 and January 2019 Miss White dishonestly and intentionally made false statements to four experts who were reporting to the Court on her physical condition. In the context of a claim valued in excess of £4 million Ritchie J found beyond reasonable doubt that the false statements relating to Miss White’s mobility had a value of at least £1 million.

In light of this finding of fact Ritchie J went on to pass sentence for contempt.

Culpability and Harm

It was noted that Miss White had been dishonest in a way that she misled many experts during her clinical negligence claim. She continued that dishonesty in her witness statement despite being shown the surveillance evidence which had exposed her dishonesty. She showed no insight, understanding or remorse in doing so.

As to harm caused, Ritchie J pointed to Miss White’s conduct that put the NHS, through the Trust, to additional expense in obtaining expert reports, expending legal fees and carrying out surveillance and bringing contempt proceedings. Her conduct also resulted in valuable Court time and resources being used. She caused expenditure to the Legal Aid system which will never be recovered.

Personal Mitigation

Ritchie J pointed to the following factors in mitigation:

1. Miss White had a 9 year old son;

2. She lived with her mother who provided some care to her son;

3. Miss White had already suffered as a result of her dishonesty. She lost the residual value of her clinical negligence claim which could have been as high as £150,000. She recovered £45,000 of interim payments but was ordered to repay this sum;

4. Miss White suffered a horrible physical challenge as a result of her degenerate spinal condition which first became symptomatic when she was in her late teens;

5. Miss White had clearly suffered a major depressive disorder (as evidenced by a psychiatric report) which had been recurrent and fluctuating. Her condition had a disruptive effect on her decision-making process;

6. Miss White and her son have rights under the Human Rights Act to a family life, and Miss White has rights under the Equality Act 2010 as a result of her physical disabilities, and

7. The time that had occurred between the end of Miss White’s clinical negligence claim, the start of the contempt proceedings and the permission hearing. The proceedings had been hanging over her for much longer than anyone would wish in an ideal world. However, the delays were contributed to my Miss White’s failure to make full and frank admissions of her contempt until the last minute.

Sentence

Ritchie J held the starting point for contempt of Court is a sentence of imprisonment of 12 months. As a result of the mitigating factors this was reduced to 6 months. Attention then turned to whether the sentence should take immediate effect or be suspended.

At paragraph 101 of his judgment Ritchie J stated while sentencing Miss White “I consider that you currently do present a risk to the public purse and public institutions as result of your approach to your clinical negligence claim against a tax payer funded organisation. I do not consider a suspended sentence would accurately ameliorate that risk. I consider that you have shown a history of poor compliance with Court orders and rules relating to statements of truth in the clinical negligence claim and in particular your interaction with the experts and your service of witness statements with statements of truth which contained dishonest falsities. No mitigation has been put forward to show that there is any past rehabilitation in relation to your interactions with the NHS Trust or the DWP or any realistic prospect of rehabilitation in your interactions with State funded organisations.

He continued at paragraph 103 stating “Finally I do not consider that suspending the sentence will get the message across to you sufficiently strongly that: defrauding the NHS, which is funded by the tax payer is utterly unacceptable. Nor would it send out the right message to those currently suing NHS Trusts or those who will do so in the future.

Miss White was sentenced to 6 months immediate imprisonment.

This is the third clinical negligence case in 5 months to have been the subject of contempt proceedings. Defendants and their advisers are clearly alive to the potential for claimants to exaggerate the impact their injuries have on day to day living. Miss White’s case is another example of the need for claimants to be advised on the consequence of making false statements, the fact Defendants can, and do, seek surveillance evidence and the importance of verifying a claimant’s version of events.

Claimant advisers should as a matter of course conduct a detailed review of disclosure material (medical and DWP records, social media and other third party disclosure material). Furthermore, witness statements for claimants should not only focus on what a claimant cannot do as a result of their injuries, but also summarise what they are able to do on a good, bad and typical day.

At the end of his judgment, Ritchie J set out an appendix of relevant sentencing in comparable cases. This is useful reading for those who specialise in medical negligence and personal injury litigation – the judgment is available on this link.