Weekly Notes: legal news from ICLR — 20 May 2019
This week’s roundup of legal news and commentary includes fundamental dishonesty by PI claimants, the place of the dock in the criminal courtroom, the mental capacity of a person to consent to sex, and some new legislation.
False statements by personal injury claimants
Two cases elicited comment recently in which claimants seeking damages for personal injuries were found or alleged to have lied, and now face proceedings for contempt of court.
In Zurich Insurance Plc v Romaine  EWCA Civ 851 the claimant sought damages for noise-induced hearing loss caused during his employment. In a Part 18 Request for Further Information the employer’s insurers asked him questions about his activities outside work in response to which he denied (despite suggestions to the contrary in his medical records) that he had been a singer in a band or had ridden a motorcycle. However, an intelligence report commissioned by the insurers discovered in his Facebook account frequent references to riding motorbikes and playing electric guitar in a rock band.
The insurers informed the claimant’s solicitors that they had applied to strike out the claim. Later the same afternoon, the claimant served a notice of discontinuance. Subsequently, the insurers issued and served committal proceedings on the claimant by way of a Part 8 claim form contending that he was guilty of contempt of court pursuant to CPR 81.17(1)(a) (‘Making a false statement in a document verified by a statement of truth’ contrary to CPR 32.14). Permission was refused by the judge at first instance but granted on appeal. Haddon-Cave LJ said, at para 30:
“The issue for the court on an application for permission to bring [contempt] proceedings is, therefore, not whether a contempt has, in fact, been committed, but whether it is in the public interest for proceedings to be brought to establish whether it has or not and what, if any, penalty should be imposed. The question of the public interest also naturally includes a consideration of proportionality.”
It should be emphasised that the court does not make any findings of fact: it merely grants permission to bring a contempt claim. A more detailed examination of the court’s reasoning is provided by Gordon Exall on his Civil Litigation Brief blog: Why the lying litigant should fret: Court of Appeal decision on contempt: when Facebook flatly contradicts part 18 replies
In a more lurid and egregious case, Patel v Arriva Midlands Ltd  EWHC 1216 (QB), the defendant bus company and its insurers applied under section 57 of the Criminal Justice and Courts Act 2015 to dismiss the claimant’s claim on the grounds that it was fundamentally dishonest, and for costs. The claimant had sought damages for personal injuries incurred in a collision as a pedestrian with the first defendant’s bus, as a result of which it was claimed that he had sustained a traumatic brain injury, an anoxic brain injury, a cardiac arrest, and a severe conversion disorder. An examination for a medical report found him bed-bound, mute and unresponsive. However, once again the insurers checked the situation by way of a surveillance report, which appeared to show the claimant fully mobile and able to travel without apparent difficulty as a car passenger on a number of journeys.
The judge’s findings, according to a case comment by counsel for the defendants, Alan Jeffreys QC of Farrar’s Building, were “robust”. Judge Melissa Clarke, sitting as a High Court judge,
“found that the Claimant’s disability was feigned, that he had presented an egregiously untrue picture of his disabilities, that he had been dishonest, and that that dishonesty amounted to fundamental dishonesty in relation to his claim. She also found that the Litigation Friend had supported the Claimant in his dishonesty, and had lied.”
The claim was dismissed, and the claimant and litigation friend were ordered to pay costs on an indemnity basis. Moreover, the judge having made a finding of fundamental dishonesty to a criminal standard of proof, they now face the prospect of committal for contempt of court, should the defendants choose to pursue such an application.
The consequences of civil contempt involving a party (in that case an expert medical witness) deliberately or recklessly making a false statement in a document verified by a statement of truth were starkly illustrated in another recent case, Liverpool Victoria Insurance Co Ltd v Khan  EWCA Civ 392;  WLR(D) 178, where the Court of Appeal recommended a sentence in excess of nine months’ imprisonment (allowing an appeal from the excessively lenient sentencing of the judge below).
Do we need docks?
There was a discussion on Twitter about the need for a dock in criminal courts after the Guardian published a story, Dressing for the dock: the psychology of courtroom style, about some celebrity defendants in American courts. Although the article was primarily about sartorial matters, and probably not intended to be taken all that seriously, it betrayed a popular misconception about the furniture of the courtroom not dissimilar to that about the use of gavels. As both a British barrister and an American judge pointed out, there are no docks in American court rooms.
As the judge went on in the thread to explain, there are other ways of ensuring the good behaviour in court of violent defendants (some of which may not be available to British security officers), and “Our view is that the dock is expensive, wasteful, unnecessary, unfairly prejudicial, and stigmatizing, and that it increases risk.”
Some years ago the question whether we really need docks in our own jurisdiction was raised, and there has been some research on the subject. See, for example, Rossner and others, The dock on trial: courtroom design and the presumption of innocence (LSE) and a report by JUSTICE, In the Dock Reassessing the use of the dock in criminal trials, recommending their removal (a call to which the then Lord Chief Justice, Lord Thomas of Cwmgiedd lent his support at the time.)
But we continue to use them, often in the enhanced glassed-in version known as a “secure dock”, and in a small number of cases they appear to have been justified by incidents in which a defendant has escaped, assaulted someone, even in one case assaulted a judge. (In another notable case, a defendant was recpatured after being rugby-tackled by the judge as he attempted to make good his escape.) All in all, to use another hackneyed phrase, we might say “the jury is still out” on the use of the dock over here.
Gavel not a given
Perhaps more surprising was the same judge’s assertion in the same discussion that gavels (the most popular inappropriate stock image for any law related story in the media) are also not regularly used in American courts.
This certainly contradicts the perception over here that they are widely used in America, and that it is owing to the pervasiveness of American cultural references to that fact that we must put up with them being used inappropriately in other common law contexts.
It seems that scriptwriters, sub-editors and copywriters are more enamoured of these visual clichés— the attention seeking gavel and the oppressive dock — than can possibly be justified by reality. Oh, and three cheers for Judge Burgess for his very helpful engagement with British legal twitter.
The Offensive Weapons Act 2019 (c 17) will make it illegal to possess dangerous weapons in private, including knuckledusters, zombie knives and death star knives, and will make it a criminal offence to dispatch bladed products sold online without verifying the buyer is over 18.
The Act also paves the way for Knife Crime Prevention Orders, which use Asbo-like powers to control the apparently growing problem of knife crime. According to the announcement of the new legislation, guidance on the process for Knife Crime Prevention Orders will be published, including operational guidance to police forces, ahead of a pilot in London.
The Mental Capacity (Amendment) Act 2019 (c 18) makes amendments in relation to deprivation of liberty arrangements in relation to persons lacking mental capacity in particular contexts. The earlier Deprivation of Liberty Safeguards (DoLS) have been replaced by Liberty Protection Safeguards (LPA). It has been under discussion for some time, the Bill having been announced last July: New law introduced to protect vulnerable people in care
Consent to sex
The case of Re NB gave rise to a good deal of misunderstanding when, during the hearing in which the court was considering whether a woman whose mental health appeared to be declining could lawfully consent to sex with her husband of 20 years, the judge (Hayden J) was reported as saying
“ `I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife — and the right of the State to monitor that,’ he said.`I think he is entitled to have it properly argued.’”
See, via the Transparency Project, Does a man have a right to sex with his wife? Though the meaning was clear enough from the Press Association’s bulletin, the remarks were reported out of the context of the discussion in the case and used to suggest a blinkered old judicial chauvinist was trumpeting the right of a man to sex with his wife, whether she willed it or no.
Now the judgment has been released, it has been possible to get a clearer sense of what the case is about — which is nothing to do with the husband’s right to override his wife’s inability to consent (as some commentators suggested) but about whether the state had grounds to intervene to interfere in the private marital life of two citizens.
There is a careful explainer by Barbara Rich on the Transparency Project blog, NB on Re NB, which also criticises the misreporting and misapprehension by commentators, and the sad effect it has had on the couple in the case.
Independent Reviewer of Terrorism Legislation appointed
Jonathan Hall QC has been appointed to the role, replacing Max Hill QC.
As well as the Twitter account, presumably Hill will also be transferring the Blog, in the last post on which Hill announced his appointment as Director of Public Prosecutions (back in October last year). It has taken quite a few months to find and appoint a replacement.
Nothing daunted, the Home Secretary, who’s in charge of this sort of thing, today gave a big speech about how much his department is doing in the way of “countering terrorism and keeping people safe from emerging threats”. In a speech given at New Scotland Yard, with suitably contemporary cultural reference, he began:
Now, if anyone here is watching ‘The Looming Tower’, a TV drama about siloed US security agencies not talking to each other about potential threats, you might worry that’s how it works here.
But if that was ever true there and then, it’s certainly not true here and now in the UK.
Every week Neil and I sit down with the Director General of MI5 and we go through all of the high-priority investigations.
Making sure the top threats are prioritised and coordinated.
Since becoming Home Secretary a year ago, it’s been a huge privilege to be trusted with daily decisions that directly affect the security of our citizens.
Some of them can mean the difference between life and death.
So, it’s a responsibility I take very seriously.
Let’s hope so. But for it to take nearly half a year to replace the independent reviewer of terrorism legislation remains rather worrying.
Dates and Deadlines
Survive and thrive: The Gift of the Gab — How eloquence works
Middle Temple — 19 June 2019, 5.30 pm
This talk, given by David Crystal and based on his book of the same title, will focus on five crucial issues including the notion of an audience’s attention span, preparation, rehearsal etc. Moderated by Clive Anderson. For more details see Middle Temple website.
Tweet of the Week
shows something in the courts estate that isn’t quite fit for the future.
That’s it for this week. Thanks for reading. Watch this space for updates.
This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.