Royal & Sun Alliance Insurance Plc v Kosky

An application for permission to commence contempt proceedings requires a strong prima facie case that contempt occurred and a showing that proceeding would be in the public interest. The court must identify precisely the statement said to be false and explain why it was false. Permission should not ordinarily involve detailed assessment of equivocal surveillance evidence. A claim does not establish a strong prima facie case merely because a claimant may have failed to give a complete medical history where the relevant history was disclosed in records and reports incorporated into the pleading.

Royal & Sun Alliance Insurance plc sought permission under the new CPR 81.17 to commence contempt proceedings against Shirley Kosky. The proposed contempt related to a statement of truth on particulars of claim in an earlier personal injury action arising from a 2009 road accident.

The insurer alleged that Mrs Kosky had concealed previous lower-back problems, failed to account for damages recovered after a 2006 accident, and misrepresented her mobility. Mrs Kosky opposed the application and gave evidence. The central issue was whether the allegations established a strong prima facie case warranting permission.

1. Permission to commence contempt proceedings was refused. The applicant had to establish both a strong prima facie case that contempt had occurred and that proceeding would be in the public interest. The public interest in responding firmly to bogus or inflated claims was accepted, but the individual circumstances and surveillance evidence remained relevant to that assessment.

2. The allegation concerning Mrs Kosky’s medical history did not meet the threshold. Although she might have been slow to provide her complete history to the medical experts, the records disclosed the relevant lower-back problems. Those matters also appeared in the medical reports identified in the particulars of claim. The pleaded case therefore did not provide a strong prima facie basis for contempt.

3. The schedule of loss was not signed with a statement of truth, although it should have been under paragraph 1.43 of the practice direction to CPR 22. The judge’s preliminary view was that, if the schedule was separate from the particulars for signature purposes, it should also be treated as separate for the purposes of CPR 81.17(1). This answered that aspect of the application. In any event, the insurer would have had to show dishonesty concerning the alleged overlap with damages from the 2006 accident.

4. The surveillance evidence was equivocal. It showed Mrs Kosky walking with difficulty in some circumstances and walking slowly without a stick in others. The court declined to undertake a detailed examination of approximately four hours of surveillance evidence at the permission stage. The evidence was not clear-cut and the public interest did not require that exercise.

5. The application demonstrated the need to identify precisely what was alleged to be untrue and the manner in which it was said to be untrue.