In a High Court judgment handed down last month the severity of the possible ramifications for bringing dishonest or exaggerated clinical negligence claims were made startlingly apparent.
In Calderdale and Huddersfield NHS Foundation Trust v Sandip Signh Atwal, the NHS Trust was successful in obtaining a finding of contempt against a defendant in relation his conduct during his earlier clinical negligence case.
Mr Atwal informed the NHS Trust of his intention to mount a claim for negligent treatment relating to a 2008 admission to one of the Trust’s hospitals for two fractured fingers and a laceration of the lower lip.
The Trust admitted that Mr Atwal’s fractures had been inappropriately treated and that his lip should have been promptly sutured. The result of this negligent treatment was that Mr Atwal was left with a slightly debilitating injury to his left hand and a discoloured area of his lower lip.
The Trust sought to settle the matter by making a Part 36 offer of £30,000. Mr Atwal did not accept the offer and commenced proceedings against the Trust in 2013 (the limitation period having been extended by agreement of the parties).
In the ensuing litigation Mr Atwal claimed that as a result of his injuries he was unable to work in his previous role as a courier due to difficulty in lifting heavy objects and driving. He also claimed that he could no longer perform as a professional DJ, which he used to do to large audiences, because of a loss of confidence and problems caused by diminished dexterity. In a witness statement served in November 2014 and verified by a Statement of Truth, Mr Atwal stated that:
‘he could not go shopping… pack or carry heavy bags… could not continue to work as a courier… had no confidence in going out… [and] had no income.’
The statement was accompanied by a Schedule of Loss and Damage, also verified by a Statement of Truth, in which Mr Atwal sought to claim £837,109 for damages, past and future losses owing to his injuries.
By mid-2015 the Trust’s solicitors had become increasingly suspicious of Mr Atwal’s account as there was a growing disparity between his description of his symptoms and the available medical records.
Consequently video surveillance was carried out and enquiry agents were commissioned. The video surveillance, carried out of over three months, showed Mr Atwal using his hands to deftly grasp the handles of crutches (needed for an unrelated condition), working as a courier, driving for prolonged periods and lifting heavy items without difficulty.
Additionally the enquiry agents discovered that Mr Atwal had been able to release a single and accompanying music video in 2011 showing him performing ‘with no visible signs of discomfort’.
Mr Justice Spencer presiding in the High Court described this evidence as being ‘wholly inconsistent with his account of being embarrassed and afraid to present himself in public.’
In 2016 the Trust duly amended its position to allege fraudulent exaggeration by Mr Atwal and applied to strike out the claim for special damages as an abuse of process.
At this point Mr Atwal had a drastic change of heart and decided to accept the Trust’s original Part 36 offer for a settlement in the value of £30,000.
Subsequently a Consent Order was lodged with the Court which required the defendant to pay the Trust’s costs from 5 January 2012. The effect of this resolution was that ‘after years of litigation the defendant came out of it with nothing, and owing £5,000 to the Trust’.
As a consequence of Mr Atwal’s conduct the Trust then applied for committal on the basis that the defendant had:
- Sought to interfere with the due administration of justice, and
- Had made false statements in a document certified by a statement of truth absent an honest belief in the truth of those statement.
Applying the criminal standard of proof, Mr Justice Spencer was satisfied that the ‘thoroughly dishonest’ defendant was guilty of 14 counts of contempt. We await the decision on sentencing.
Comment: Dishonest or exaggerated claims
In its ‘Annual report and accounts’ for 2016/17 NHS Resolution (formerly the NHS Litigation Authority) reported that 10,686 new claims for clinical negligence were commenced, and a total of £1,083 million was paid out to patients.
In this climate, and considering the possible financial value of clinical negligence claims, insurers and healthcare providers are rightly concerned about the prospect of dishonest or exaggerated claims.
There are numerous examples of committals for contempt in the arena of motor insurance claims.
These include the proceedings in Accident Exchange Limited v Nathan Broom in which Supperstone J sentenced five individuals, who were employed as rate surveyors by Autofocus Limited, to periods of imprisonment for contempt, ranging between 6 months and 13 months, for their participation in ‘the systematic, endemic fabrication of evidence’.
The present case is noteworthy because of the context in which it arises, namely a clinical negligence claim. It should serve as a warning to any defendant who is tempted to inflate or exaggerate the nature of the harm which they have suffered.