Exaggeration and dishonesty does not pay!

Published 9 May 2018

Summary

In this briefing we consider the impact of Calderdale and Huddersfield NHS Foundation Trust v Sandip Singh Atwal [2018] EWCH 961 (QB) a clinical negligence claim in which the Claimant was found guilty of contempt of court for gross exaggeration of his injuries and resultant financial loss. 

This case highlights a wider trend in the willingness of Defendants to pursue sanctions against those who knowingly and falsely exaggerate the value of their claims.  

As the numbers and value of clinical negligence claims continue to increase, similarly robust action may be necessary to deter others who might seek to exploit the system. 

The Facts

Calderdale and Huddersfield NHS Foundation Trust v Sandip Singh Atwal [2018] EWCH 961 (QB) concerned an application to bring contempt of court proceedings against a Defendant who had previously claimed against the Trust for significant damages resulting from a clinical negligence claim.

The original claim for clinical negligence began in June 2008. The Claimant, Mr Atwal, was the victim of an assault with a baseball bat. He had suffered fractures to his right index finger and base of his left ring finger, and a laceration to his lower lip, and attended the Accident and Emergency department at the Huddersfield Royal Infirmary where he received inpatient care.

The Trust admitted negligence on the basis of a failure to treat the fractures appropriately and a further failure to suture Mr Atwal's lip promptly. Mr Atwal was subsequently left with a bent, stiff and weak right index finger and an infected lip resulting in areas of sensory disturbance and a loss of pigmentation slightly larger than would have been the case but for the negligent treatment. A Part 36 offer in the sum of £30,000.00 was made.

The Dishonesty

Mr Atwal's pleaded case relied on a range of expert evidence from an orthopaedic surgeon, psychiatrist, maxillofacial surgeon, nursing care expert and an employment specialist. He argued that his injuries affected his dexterity, his ability to lift heavy items, and his ability to communicate. He claimed to be unable to continue performing as a DJ in front of large audiences. He said that he needed help cutting up his food. The nursing expert concluded, based on what Mr Atwal had informed her, that he required ongoing lifelong care and assistance on a daily basis with toileting, showering and dressing, general fetching and carrying, psychological and emotional support and preparation of meals and drinks.

In November 2014, Mr Atwal served a witness statement, verified by a statement of truth, asserting the same issues as listed above. Mr Atwal then served a Schedule of Loss, again verified by a statement of truth, pleading total losses of £837,109.00. This included substantial claims for future loss of earnings and future care based on the proposition that he was no longer able to work and was significantly incapacitated.

The Trust became suspicious.  Mr Atwal's claimed disabilities were inconsistent with the entries in contemporaneous medical records. It, therefore, commissioned covert video surveillance and investigated his social media postings. Among other things, the evidence revealed that Mr Atwal had returned to his work as a DJ by 2011. His recovery from the injuries sustained in the assault was complete by 2010 at the latest. The remainder of the claim for additional care and support was entirely refuted and the Trust amended its Defence to plead fraudulent exaggeration, seeking to strike out the whole of the special damages claim as an abuse of process.

Just two months prior to the assessment of damages hearing, and before the Trust's arguments on fraudulent exaggeration could be brought to fruition, Mr Atwal notified the Trust that he would accept its original offer of £30,000.00 made some five years previously.

The Trust's Application

This appeared to bring Mr Atwal's claim to an end. However, given the extent of Mr Atwal's exaggeration, the Trust sought to have him committed for contempt of court. 

The Trust alleged two forms of contempt. First, they alleged interference with the due administration of justice by Mr Atwal in making false statements about his continuing disability to the medical and other experts involved in his claim. The second derived from CPR 32.14(1) which provides that proceedings for contempt of court may be brought against those that make a false statement in a document verified by a statement of truth, in this particular case, his witness statement and his Schedule of Loss.

The Court's decision

Mr Justice Spencer found for the Trust and concluded the following:

"I am therefore satisfied so as to be sure that each of these five statements was deliberately false. The making of false statements to the experts plainly had a tendency to interfere with the administration of justice by increasing the seriousness of the consequences of the injuries and, potentially, increasing the quantum of his damages. I am sure too that the defendant must have intended thereby to interfere with the administration of justice. There is no other explanation for making such false statements…I am sure that the defendant had no honest belief in truth of the statements he made and knew full well that these statements were likely to interfere with the course of justice."

The consideration of Mr Atwal's criminal sentence for contempt of court has been adjourned to 1 June 2018.

How can we help?

This approach by the Trust mirrors the increasing appetite of insurers to pursue sanctions against those who lie to inflate the value of their claims. Our Counter Fraud team has seen that many of our clients are increasingly willing to look for findings of Fundamental Dishonesty in high value claims and more willing to explore contempt and committal proceedings at the end of civil claims for damages. The fact that committal was pursued, even though Mr Atwal was allowed to accept an offer of damages, is a very welcome development and is a real warning to those who see a genuine claim for damages as amoney making scheme whether in the clinical negligence or personal injury environment.  

We have a team of experts in clinical negligence and counter fraud disputes who can advise and support you. For more information please contact us.