Liverpool Victoria Insurance Company Ltd v Zafar (Rev 1)

A false statement made without an honest belief in its truth in a document verified by a statement of truth is always a serious contempt. Deliberate or reckless falsehood will usually require committal to prison. An expert’s recklessness will ordinarily approach the culpability of an intentional lie because the court and the parties depend upon the expert’s honesty and independence.

The court must assess culpability and harm, decide whether a fine suffices, select a commensurate term, allow any reduction for an admission, and then consider suspension. An expert’s committal will usually take immediate effect unless powerful factors justify suspension. Ordinary delay caused by properly contested proceedings attracts little mitigating weight. An appellate court may interfere where the judge erred in principle, mishandled material factors, or imposed a penalty outside the reasonable range.

A medical expert produced a revised medico-legal report which materially changed his findings and prognosis without a further examination or proper evidential basis. He later gave conflicting explanations in witness statements. Garnham J found ten contempts proved, comprising one deliberately dishonest statement and nine statements made recklessly without caring whether they were true.

The High Court’s decision was reported at [2018] EWHC 2581 (QB). The judge ordered committal for six months but suspended execution for two years. The insurer appealed with the judge’s permission, seeking a longer term of immediate effect.

The central questions were whether the sentence was outside the range reasonably open to the judge and what principles should govern the term, mitigation, delay, admission and suspension when an expert witness makes false statements verified by statements of truth.

1. Disposition. The Court (Sir Terence Etherton MR, Hamblen and Holroyde LJJ), giving a joint judgment, allowed the appeal. A suspended term of six months was unduly lenient and outside the range reasonably available to the judge. The proper term could not have been less than nine months, and a term of 12 months would not have been excessive. The term should ordinarily have taken immediate effect because no powerful factor justified suspension.

2. A civil appellate court should interfere with a penalty based upon a multifactorial assessment only where the judge made an error of principle, considered an immaterial factor, omitted a material factor, or reached a plainly wrong result outside the reasonable range. Once that threshold is crossed, the appellate court may remit the matter or substitute its own decision.

3. A court sentencing for a false statement verified by a statement of truth should assess the contemnor’s culpability and the harm caused, intended or likely. It should then decide whether a fine suffices. Deliberate or reckless falsehood will usually be so inherently serious that committal is necessary. Actual failure to affect the litigation, or the modest value of the underlying claim, does not remove the seriousness of conduct which undermines the administration of justice.

4. An expert witness’s overriding duty to the court makes false expert evidence particularly serious. Recklessness will usually be almost as culpable as deliberate dishonesty because the expert knows that the court and parties depend upon truthful, independent opinion. Culpability increases where the expert ignores circumstances casting doubt upon accuracy, persists in falsehood, or commits further misconduct to conceal it. Here the false revised report, the attempted cover-up, repeated false statements and indirect financial motivation brought the culpability close to deliberate dishonesty.

5. Mitigation may include an early admission, cooperation, genuine remorse, serious ill health, good character and effects upon dependants. Professional or financial ruin carries limited weight because professional standing enabled the abuse of trust. External and unreasonable delay may mitigate, but the ordinary passage of time caused by contesting allegations usually carries little weight. An admission when proceedings commence may attract a reduction of up to one-third, declining to about 10% at trial.

6. After selecting the term and applying any reduction, the court must separately consider suspension. An expert’s term will usually be served immediately, and one or more powerful factors are required for suspension. Serious effects upon children or vulnerable persons may qualify, but recklessness rather than intention is not itself a powerful factor.

7. Although the sentence was reversed in principle, the Court did not increase it. The judgment supplied guidance which had not previously been available, and it would have been unfair to impose its adverse consequences retrospectively. The Court therefore declared the sentence unduly lenient without substituting a more severe sanction.

• Court of Appeal (Civil Division): In [2019] EWCA Civ 392, the Court allowed the insurer’s appeal and held that six months’ committal suspended for two years was unduly lenient. It declined to increase the sentence because the judgment supplied previously unavailable guidance.
• High Court, Queen’s Bench Division: Garnham J found ten grounds of contempt proved and ordered committal for six months, suspended for two years: [2018] EWHC 2581 (QB).