AXA Insurance UK Plc v Rossiter

A discrepancy between a statement of truth and surveillance evidence does not automatically establish contempt of court. The court must determine, as a matter of fact and degree, whether the claimant dishonestly exaggerated the claim rather than inaccurately described a genuine and fluctuating condition.

Each alleged contempt based on a false statement must be proved beyond reasonable doubt. The applicant must establish falsity, material interference or likely interference with the course of justice, absence of an honest belief in the statement, and knowledge of its likely interference. Understandable exaggeration is insufficient; gross exaggeration accompanied by dishonesty may constitute contempt.

Following a road traffic accident, the defendant brought a personal injury claim against a tortfeasor insured by the claimant. Liability was admitted and the claim was later compromised by acceptance of a Part 36 offer and a Tomlin order.

The insurer subsequently sought the defendant's committal for contempt of court. It alleged that 48 statements in medical consultations, a witness statement and schedules of loss dishonestly portrayed permanent and severe disability. Surveillance footage showed the defendant leaving home, driving, shopping, carrying objects and undertaking other activities.

The defendant accepted that her presentation had not adequately described the variability of her symptoms. She denied dishonesty and maintained that she experienced prolonged periods of serious incapacity. The central issue was whether the insurer had proved each alleged contempt beyond reasonable doubt.

1. The application was dismissed. Although several statements were false or inaccurate because they failed to describe what the defendant could do on better days, the claimant had not proved beyond reasonable doubt that she made them dishonestly.

2. For each alleged contempt, the claimant had to prove beyond reasonable doubt that the statement was false; that it had interfered, or if persisted in would probably have interfered, materially with the course of justice; and that its maker lacked an honest belief in its truth and knew of its likely interference. The inaccurate statements were capable of materially affecting the administration of justice by increasing the damages awarded or the settlement value.

3. Surveillance showed activities which the medical reports and witness statement had effectively excluded. It did not, however, prove that the defendant was generally capable of more than the recorded activities. The footage showed no particularly energetic or strenuous conduct. Other evidence supported the existence of good and bad periods, including occasions when the defendant was unable to leave home.

4. Following Walton v Kirk [2009] EWHC 703 (QB), inconsistency between a statement verified by a statement of truth and surveillance footage does not automatically establish contempt. The issue is one of fact and degree. Some exaggeration may reflect an understandable attempt to ensure that a genuine condition is not underestimated, while gross and dishonest exaggeration is impermissible.

5. The reasoning in Ford v GKR Construction (22 October 1999, unreported) provided a close analogy. A person with a fluctuating condition may treat periods of greatest incapacity as the norm and fail to recognise occasions when more can be done, without deliberately lying. The defendant's evidence and that of her son and friends at least raised considerable doubt about dishonesty.

6. The more qualified account later given to the claimant's psychiatrist reflected the defendant's solicitor having drawn the variability of her condition to her attention. It did not establish that her earlier account had been dishonest. The later schedule of loss was likewise not proved dishonest. The requisite mental element of contempt therefore failed.

• High Court (Queen's Bench Division): Sir Raymond Jack granted permission on 17 April 2013 for the claimant to apply to commit the defendant for contempt. Stewart J dismissed the substantive application.

• Truro County Court: Judgment on the admitted personal injury claim was entered for the defendant. The damages proceedings were later compromised following acceptance of a Part 36 offer, and a Tomlin order was made on 5 September 2012.