Burke v Sema Group Medical Services

Permission to appeal should be refused where the proposed grounds merely challenge the trial judge’s assessment of facts and disclose no arguable basis that the judge misunderstood the evidence or failed properly to take it into account. A factual contention accepted below as correctly recorded cannot ordinarily be revived as a complaint that the judge overlooked it. The later correction of an underlying benefit decision does not, by itself, establish malicious falsehood or make an evidential challenge arguable. An ancillary application for a publicly funded transcript does not arise once permission to appeal is refused.

The claimant brought a claim for damages for malicious falsehood against medical service providers. He alleged that a medical report prepared for the assessment of his entitlement under the Social Security Administration Act 1992 contained false statements and caused his disability allowance claim to be rejected at the higher rate.

The High Court dismissed the claim and ordered the claimant to pay 90 per cent of the defendants’ costs. He applied for an extension of time and permission to appeal, and also challenged a refusal to provide a transcript of the evidence at public expense. The central issue was whether it was arguable that the judge was not entitled to reach his factual conclusions.

Application dismissed. Lord Justice Laws refused the application for permission to appeal. The ancillary question concerning provision of the evidence transcript therefore did not arise.

1. The proposed grounds principally challenged the judge’s treatment of the facts and evidence. Nothing in the papers suggested that the judge had misunderstood the material before him or failed properly to take it into account. There was therefore no arguable basis for appellate intervention.
2. The claimant placed particular reliance on words concerning the onset of severe discomfort which he said had been omitted from the record of his statement. However, he had accepted below that the relevant passage was correctly recorded. In those circumstances, it was not arguable that the judge had been required to proceed on the basis of the alternative wording. The transcript of the lower court’s judgment recorded that concession at page 3C–E.
3. The lower court was entitled to treat the disputed inserted words as clarification rather than a deliberate falsehood. It was also entitled to regard the answer concerning an ability to walk approximately 100 metres as the examining doctors’ medical opinion, and to assess the relevance of other medical reports accordingly. The judge’s criticism that the reports should have been mentioned explained the reduction of the costs order, but did not establish an arguable error affecting the malicious-falsehood claim.
4. The claimant had subsequently succeeded in obtaining the higher-rate benefit, with retrospective effect. That development did not demonstrate that the medical report was maliciously false or otherwise undermine the lower court’s factual conclusions.

• Court of Appeal (Civil Division) Lord Justice Laws dismissed the application and refused permission to appeal. The issue concerning a publicly funded transcript consequently did not arise.
• High Court, Queen’s Bench Division His Honour Judge Rich QC dismissed the claim for malicious falsehood and ordered the claimant to pay 90 per cent of the defendants’ costs.