Liverpool Victoria Insurance Company Ltd v Khan & Ors

Permission to bring committal proceedings for false statements should be granted only where there is a strong prima facie case that the statement was false, that the maker knew it was false or was reckless as to its truth, and that it was likely to interfere with the course of justice. Each element must ultimately be proved beyond reasonable doubt. The court must also consider the public interest, proportionality, the overriding objective, the strength and significance of the allegations, the resources required, and the risk of disrupting substantive proceedings. A permission application must be determined cautiously and must not prejudge the final committal hearing.

Liverpool Victoria sought permission to commence committal proceedings against two solicitors arising from road traffic accident litigation that collapsed when two materially different medical reports, both dated 17 February 2012 and attributed to the same doctor, were discovered in the trial bundle. The first defendant was alleged to have fabricated or relied upon documents and statements concerning the creation and disclosure of the amended report. The fourth defendant was alleged to have instructed the claimant to give false evidence about the duration of his symptoms. Permission had already been granted against the other two defendants. The central issues were whether there was a strong prima facie case meeting the criminal standard and whether committal proceedings were required in the public interest and were proportionate.

1. Legal threshold. Under CPR Part 81 and CPR Part 32.14, the court must exercise great caution before permitting committal proceedings. There must be a strong prima facie case that a statement verified by a statement of truth was false, that the maker knew it was false or was reckless as to whether it was true or false, and that it was likely to interfere with the course of justice. Those matters must ultimately be proved beyond reasonable doubt.
2. Public interest and proportionality. The court applied the guidance in KJM Superbikes Ltd v Hinton, William Andrew Tinkler v Trevor Howarth and Peter Elliott, Malgar Ltd v RE Leach (Engineering) Ltd, Kirk v Walton and Berry Piling Systems Ltd v Sheer Projects Ltd. Relevant considerations included the strength and significance of the allegations, the maker’s state of mind, the use made of the statement, the value of the underlying claim, likely costs, court time, the public interest, proportionality and the overriding objective. The danger of satellite litigation disrupting substantive proceedings was reduced because those proceedings had ended. The permission decision was not a determination of the ultimate merits.
3. First defendant. The metadata of the alleged letter of 22 February 2012 provided strong prima facie evidence that it had been created in August 2013, when the first defendant was preparing his witness statement. The email chain concerning the amended medical report made no reference to that letter. The court inferred that the amendment instructions had been sent by email and that the letter had later been constructed. This supported the allegations concerning the letter and the related statements. Permission was granted on grounds B1 to B12.
4. Fourth defendant. Counsel’s contemporaneous note recorded that the fourth defendant knew of both medical reports, described the shorter prognosis report as an error, and asserted that the insurer’s solicitors had been informed. The court considered this strong evidence of a greater involvement in the litigation than the fourth defendant admitted. There was a good prima facie case that he knew the longer prognosis was false when he instructed the claimant to rely on it. Permission was granted.
5. The proposed committal proceedings were in the interests of justice, in the public interest and consistent with the overriding objective.