Contempt after Summers v Fairclough David Melville QC Sadie Crapper
INTRODUCTION
• Summers v Fairclough on contempt
• Thinking of contempt?
• New CPR Part 81
• Practice and strategy before the Court
- at the interloctory hearing
- for the final hearing
• Sentencing
The Supreme Court and contempt:
“Those who make false claims if caught should expect to
go to prison. There is no other way to deter those who may
be tempted to make such claims, and there is no other way
to improve the administration of justice.” (para 57)
“…it is open to the defendant (or its insurer) to seek to
bring contempt proceedings against the claimant, which are
likely to result in the imprisonment of the claimant if they
are successful...” (para 61)
Summers v Fairclough
Summers v Fairclough
The legacy of Summers:
“It was accepted in light of the observations made
in…Summers…that applications for committal for
contempt are an appropriate means of controlling,
punishing and as far as possible eliminating, dishonesty
in the conduct of civil proceedings.”
Moore-Bick LJ in Airbus Operations and QBE v Roberts
[2012] EWHC 3631 (Admin)
Thinking of contempt?
• Case prep = contempt prep
- lay the trap: background checks, Part 18
Requests, early signed Schedules of Loss
- good body of surveillance
- medical reports – good day/bad day:
with meds/without meds
- early low value offer/interim payment?
Thinking of contempt?
• State your case
- plead fraud and evidence in support
- consider a strike out application
- indicate to C in correspondence your
intention to pursue contempt
- look for findings at trial on the criminal
standard
Thinking of contempt?
• The problems caused by settlement
- no findings of fraud on which to base
grounds for contempt
- evidence not fully evolved
- judicial jaundice in absence of
uncontrovertible evidence:
RSA v Kosky [2013] EWHC 835 (QB)
Thinking of contempt?
• Getting around the settlement
‘problem’
- pick your case wisely
- focus your grounds to those which are
easily proven
- make your evidence as easy to digest
as possible (user-friendly surveillance DVD,
detailed chronology)
Making the application: CPR 81
• No change to existing law on committal
applications
• permission still required but simplified
according to court dealing with claim
(High Court: Judge dealing with proceedings;
County Court: single Judge of QBD; or the A-G)
• Proceedings by Part 8 claim form
NB – CPR, 81PD.17 and Quinn Insurance v Atlintas, 28/11/2013
Making the application: CPR 81
• Claim form must contain notice of
consequences – CPR 81PD.13(4)
• Personal service of claim form required
(or an order for substitute service or dispensing with
service)
• All evidence by way of affidavit
• Criminal standard of proof – beyond
reasonable doubt
Making the application: CPR 81
• Application must be supported by,
Detailed grounds
- Separate your background from the particulars
- Use a shotgun, not machine gun
and
An Affidavit setting out the facts and
exhibiting the documents relied upon
Making the application: CPR 81
• Mandatory content of the affidavit
- identify the false statement
- explain why it is false and why the
maker knew it was false at the time it
was made
- explain why contempt proceedings
would be appropriate in light of the
overriding objective
CPR, 81PD.6
Prep for interlocutory hearing
• Ensure that all procedural requirements
have been observed or make an
application under CPR, 81PD.17 for
waiver
• If R is unrepresented,
- make sure they are aware of availability of
funding from LSC
- ensure that interpreters are available
if required CPR, 81PD15.6
At the interlocutory hearing
Permission will only be granted if:
a) there is a strong case prima facie case in
respect of contempt; and
b) it is in the public interest committal proceedings
be brought (see Talal El Makdessi [2013] EWCA Civ
1540, para 79); and
c) such proceedings are proportionate and in
keeping with the overriding objective.
See Kirk v Walton [2008] EWHC 1780 (QB)
At the interlocutory hearing
• Directions (CPR, r.81.14(6))
Disclosure
Notice to admit facts
Defence statement (if not already available)
Further affidavits (exhibiting all documents)
Costs
Mr and Mrs Fari – the facts
• Slipping accident
• Pre-existing degeneration of right knee
• Care claims
• Surveillance of attendance at medical appointment
• Schedules of loss, witness statements, acting up
• Illiteracy of claimant
• Joint statement orthopaedic surgeons
• Strike out
Approaching the final committal
hearing
• Aim-to establish interference with due process, the
making of false statements without belief in their truth
Evaluation of prospects will involve,
• Consideration of the evidence. All the evidence relied upon
should have been served with the application see CPR 81.14
(1) (a) and (b) and see El Makdessi paragraph 50
• All the evidence needs to be on affidavit with the documents
exhibited thereto, see 81.14.1
• Drafting of affidavits see CPR 32.15.4 and CPR 32
Practice Direction. Personal knowledge and hearsay,
source of hearsay must be stated. Exhibits.
Evidence to be relied upon
• Surveillance evidence, affidavits of the
operatives exhibiting the films and logs
• Medical evidence of doctors eg both sides,
exhibiting their reports and any joint statements,
their hand written notes of examinations, type
• Other live oral evidence eg employee of
Haringey in Fari
• Documents to be relied upon, eg medical notes
and records, original trial bundles
Directions obtained and complied
with. The pinning down process
• Deadlines
– Detailed response to the detailed case
– Notices to admit and the response thereto
– Further information requests
– Evidence of the respondent to the application
– Things deemed to have happened-danger
– Disclosure
Strategy and tips for the hearing
• A view and site visit of surveillance area
• Proof required to the criminal standard see Re
Bramblevale Ltd 1970 1 Ch 128 and see Airbus
Operations Limited Ltd QBE Insurance v Adam Lee
Roberts 2012 EWHC 3631
• What do you have to prove - all the terms of the
indictment
• The public interest dimension-Barnes v Seabrook
• Evidence, proving the case. Cross examination
bundle
• The Press in and out of court. Skeleton arguments
• Concentration-on what?
Sentencing
• Statutory provisions: section 14 of the Contempt of Court
Act. One half to be served.
– The alternatives a suspended sentence, a fine
– Human Rights Act Article 8 - sentencing remarks to
take into account the HRA and the effect on the family
and on any children of the contemnor(s)
– Comparable range of sentences:• Sentencing Guidelines for fraud
• Banks on Sentencing
• Published reports on civil and criminal cases
• Lawtel/Westlaw
• Arlidge and Eady on Contempt 4th edition chapter 19, not
available online
Order of committal
• Form of order of committal has to set out what
the contemnor has done. Schedule. Costs seek
summary assessment
• Appeal, no need to seek permission
• Bail pending appeal
• Tipstaff
• Legal aid
Questions?
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