Nottingham University Hospitals NHS Trust v Sven Raymond Bogmer

Contempt of court arising from a dishonest civil claim must be proved to the criminal standard. The court must identify the central alleged deception rather than adjudicate every alleged inaccuracy. Exaggeration, viewed against surveillance or other evidence, does not automatically establish contempt. The relevant questions include the degree of exaggeration and the circumstances in which the statement was made. Deliberate and gross exaggeration, coupled with knowledge of its falsity and an intention that it should interfere with the administration of justice, can amount to contempt. A committal hearing may proceed in the defendant’s absence only as an exceptional course, after careful consideration of notice, waiver, representation, adjournment, disadvantage and the interests of justice.

The Trust applied to commit the defendant for contempt after he discontinued a clinical negligence claim concerning alleged right-arm injury following coronary artery bypass surgery. The Trust alleged that he had dishonestly exaggerated his symptoms, falsely attributed pre-existing limitations to the surgery, misled medico-legal experts and verified false statements in pleadings, schedules and witness statements.

The defendant did not attend the committal hearing and was unrepresented, although he had notice of the proceedings and had indicated that he did not intend to contest them. The court first considered whether to proceed in his absence and then determined the live allegations concerning post-surgery loss of function, causation and deliberate deception.

1. Proceeding in absence. Proceeding with a committal application in the defendant’s absence is an exceptional course. Having regard to the factors identified in R v Jones and Sanchez v Oboz, the court proceeded because the defendant had notice, had waived participation, had not established a sufficient basis for adjournment, was unlikely to attend after an adjournment, and would suffer negligible forensic disadvantage. A bench-warrant procedure was not adopted because it would serve no practical purpose in the circumstances.
2. Legal framework. The Trust bore the burden of proving the allegations beyond reasonable doubt. For contempt based on misleading experts, it had to prove the statements, deliberate intention to deceive, intention to interfere with the administration of justice, and that persistence in the statements would have caused such interference. For false statements verified by a statement of truth, it had to prove falsity, absence of honest belief, knowledge of likely interference with the administration of justice, and that persistence would have caused such interference. The court adopted the analysis in Calderdale and Huddersfield NHS Foundation Trust v Atwal.
3. Exaggeration and surveillance. In accordance with Walton v Kirk, discrepancies between verified statements and surveillance evidence do not automatically prove contempt. The issue is one of fact and degree. Natural or understandable exaggeration must be distinguished from gross and dishonest exaggeration. Here, the surveillance, expert evidence and inconsistencies in the defendant’s accounts established deliberate and substantial fabrication of restrictions affecting ordinary activities, personal care, shopping, walking the dog and fishing.
4. The court was sure that the defendant lacked an honest belief in the relevant statements, intended to deceive the experts and the court, and falsely attributed alleged limitations to the surgery when they predated it or were unrelated to it. He was therefore guilty of contempt of court. The penalty was adjourned for a further hearing, with permission for attendance by CVP and a direction that up-to-date specialist medical evidence be provided if his condition was relied upon in mitigation.