horwich farrelly

Court of Appeal confirms dodgy doctor’s suspended sentence was too lenient

March, 21, 2019

Successful appeal confirms contempt by an expert witness is more serious than that by a litigant and there is no reason not to impose an immediate custodial sentence. Case gives clear guidance for future contempt cases.

Horwich Farrelly, in conjunction with LV=, has successfully appealed a decision of the High Court, who gave a doctor found in contempt of court a suspended sentence of six months whilst, in contrast, sentenced a solicitor who committed the same offence in the same case, 15 months in jail.

The decision provides clear guidance in a number of areas: that contempt by an expert witness is more serious than when committed by a litigant; that reckless contempt by an expert witness is almost as serious as deliberate contempt; and that there is no reason not to impose a significant term of committal on an expert witness who brings ruin on themselves.

Background

In October 2018, Dr Asef Zafar was found guilty of contempt of court after presenting spurious medical documents on behalf of a claimant as evidence in a personal injury insurance claim. The deception came to light when the law firm accidentally submitted both the real report (stating an injury of one week) and the altered one (claiming six to eight months of pain).

At the time, Mr Justice Garnham said that by investigating the fraud: “LV= had done the Court a service,” in exposing the deception of both the doctor, and the solicitor, Mr Kamar Khan. He added that: “… critical to the operation of our system of justice is the trust that courts have to place in solicitor and expert witnesses. Those who make false claims should expect to go to prison. Solicitors and expert witnesses who act dishonestly in the evidence they give to the court, whether in support of such claims or otherwise, must expect a similar outcome.”

Contrary to this statement however, and despite Mr Khan receiving a 15-month custodial sentence, Mr Justice Garnham granted Dr Zafar a suspended sentence.

LV= objected to this on the grounds that, due to its leniency, the decision set a very concerning precedent. In their view there was no doubt that, like Mr Khan, Dr Zafar should have immediately been sent to prison. Further, they stressed that, unless this decision was overturned, it would be used as a precedent in other cases where contempt had been committed and that those who lied could also only receive a suspended sentence.

Outcome

In overturning Mr Justice Garnham’s decision earlier this month, the Court of Appeal (COA) stated that: “…with all respect to the judge…we are satisfied that the order for committal in this case was wrong in two respects.

“First, the term of committal should have been significantly longer than six months, even taking into account the mitigation available to the Respondent……

“Secondly, the term should have been ordered to be served immediately, there being no powerful factor in favour of suspending it. We are satisfied that a suspended term of six months fell outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.”

As well as ruling Dr Zafar should pay LV=’s costs, of at least six figures, the Court also confirmed that the contemnor cannot rely on the delay in the conclusion of proceedings where they could have made admissions sooner and that the starting point for contempt’s of this nature is 9-12 months imprisonment.

Comment

Martin Milliner, Director of Claims at LV=, said: “This is a fantastic outcome which has sent shockwaves through the system and provides a clear framework for the future that professional enablers should be very afraid of.

“The Court of Appeal has agreed with us that contempt from an ‘expert’ is even more serious than a litigant contempt, and we hope that this ruling deters unscrupulous doctors and lawyers from engaging in this fraudulent practise.”

Ronan McCann, Managing Partner at Horwich Farrelly, added: “We are extremely pleased that LV= decided to make a stand in this case and that the Court Of Appeal duly handed down very strong guidelines in what is a hugely significant precedent for the insurance industry.

“It should now be very clear to all fraudsters, including expert witnesses, that if they lie in bringing a fraudulent claim then the most likely outcome is a significant prison sentence as well as a significant liability for costs.

“The Court of Appeal has poured cold water on formulaic mitigation, the delay in proceedings, or the suggestion that being reckless is not as significant as outright dishonesty. No longer will courts be able to rely on these points to suspend a sentence.”

The future

The judgement is hugely helpful to the industry for all contempt of court cases in the future. Indeed, it will be the leading authority on contempt of court going forward. Not only did we win the appeal, we won on every single point we argued; the Court found Justice Garnham got the original decision wrong and that the sentence, as advised, was unduly lenient. We do not believe the industry will see any sentences which could be called ‘unduly lenient’ in future as this case now gives guidance on how the courts are to apply the law.

Other key findings include:

  1. The mitigatory effect of delay has been massively limited, a point which was very important and was being routinely deployed in case of this nature, it can no longer be.
  2. The COA has accepted that expert contempt is even more serious than litigant contempt.
  3. Reckless contempt by an expert “will usually be almost as culpable as an expert witness who does so intentionally” again a huge point for the industry which means finding of recklessness will now see jail time.
  4. The COA found that the seriousness lay in the defendant putting forward the revised report.
  5. The fact that the professional has brought ruin upon himself will not in itself be a reason not to impose a significant term of committal.
  6. The starting point is a term of imprisonment, here of 9-12 months.
  7. One or more powerful factors will have to be shown by any defendant to establish suspension. Recklessness is unlikely to be such a powerful factor.

The impact of this case will be felt immediately. We know that Justice Garnham’s judgement was already being deployed by claimant solicitors trying to seek suspended sentences but we have thankfully put a stop to that which is a great outcome for the industry as a whole. It will doubtless be circulated amongst experts who will be well warned to take great care when dealing with any requests to amend their opinions, as failure to do so could result in the loss of their careers and their liberty.

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