Liverpool Victoria Insurance Company Ltd v Zafar

Factual and Procedural Background

On 5th October 2018, after a lengthy contested hearing, Garnham J found that ten grounds of contempt of court had been proved against the Respondent by the Appellant, Company A. The judge ordered that the Respondent be committed to prison for six months but suspended execution of the committal order for two years. The Appellant appealed with permission, seeking to increase the sentence on the basis that it was wrong in principle and unduly lenient.

The Respondent was employed by the NHS as a registered medical general practitioner and operated a private medico-legal practice, producing approximately 5,000 reports annually. The case arose from a road traffic accident involving a claimant, who instructed solicitors to pursue a compensation claim. The Respondent was engaged to prepare a medico-legal report concerning the claimant's injuries and recovery.

The Respondent produced an original report dated 17th February 2012, stating the claimant had fully recovered from acute symptoms within one week. Subsequently, a revised report was produced on the same date but containing significantly different findings indicating ongoing symptoms and a prognosis of recovery over 6-8 months. The revised report was sent to the claimant's solicitors and used in court proceedings.

It was later discovered that the original report had mistakenly been included in a trial bundle instead of the revised report, revealing the discrepancy. The Respondent initially asserted that the revised report was an unauthorized alteration by a third party, but later admitted having amended the original report himself. The Appellant commenced contempt proceedings against the Respondent and others, alleging false statements verified by statements of truth that interfered with the administration of justice.

The judge found ten grounds of contempt proved against the Respondent, including reckless false statements in the revised report and dishonest conduct in witness statements attempting to cover up the misconduct. The Respondent was sentenced to six months’ imprisonment, suspended for two years, and ordered to pay costs.

Legal Issues Presented

1. Whether the sentence imposed on the Respondent for contempt of court was wrong in principle and unduly lenient.
2. The appropriate length and nature of the sentence for contempt of court committed by an expert witness who makes false statements verified by a statement of truth.
3. Whether suspension of the committal order was justified in the circumstances.
4. The application of the principles governing contempt of court, including the duty of expert witnesses to the court and the assessment of culpability in false statements.

Arguments of the Parties

Appellant's Arguments

• The judge’s sentence was plainly wrong and unduly lenient given the seriousness of the Respondent’s misconduct.
• The judge failed to apply the relevant legal principles with sufficient rigour, particularly regarding the duty of expert witnesses.
• The Respondent’s persistent falsehoods and reckless conduct warranted a longer, immediate custodial sentence.
• The Respondent’s privileged position as an expert witness and the financial motive increased the seriousness and required harsher punishment.
• The delay in proceedings was primarily due to the Respondent’s denial and lack of admission, and personal mitigation was typical and not exceptional.
• The court should provide guidance on sentencing for expert witness contempt and the effect of delay and suspension.

Respondent's Arguments

• The judge carefully considered all relevant factors and directed himself correctly on sentencing principles.
• The suspended sentence was within the reasonable range and not so lenient as to justify interference.
• Only one finding involved dishonesty; the others were recklessness, justifying suspension.
• The Respondent was sentenced only for proven false statements, not on general allegations of other false reports.
• The Respondent was entitled to contest some allegations and delay was a mitigating factor.
• The sentencing approach aligned with the Sentencing Council’s guidelines on community and custodial sentences.
• The power to increase the sentence should be used sparingly and no general tariff guidance beyond existing case law was necessary.
• Consideration of double jeopardy precludes retrospective application of harsher sentencing principles.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the legal framework governing expert witnesses’ duties under CPR 35 and the Practice Direction, emphasizing the overriding duty to assist the court impartially. It analyzed the nature of contempt by false verification under CPR 32.14 and the procedural provisions for committal under CPR 81.

The court acknowledged the inherent seriousness of contempt involving false statements verified by a statement of truth, particularly when committed by expert witnesses whose opinions carry significant weight in litigation. It distinguished between dishonesty and recklessness, concluding that recklessness in this context approaches the culpability of intentional falsehood due to the expert’s duty and the trust placed in them.

The court found that the Respondent’s conduct was aggravated by financial motivation, persistence in false statements across multiple documents, deliberate dishonesty in a witness statement, and attempts to shift blame to others. These factors significantly increased culpability.

Mitigating factors such as lack of previous complaints, absence of corruption, personal and professional ruin, and delay in proceedings were considered but found insufficient to justify the leniency of the sentence imposed. The court criticized the judge for giving disproportionate weight to recklessness over dishonesty and to delay caused largely by the Respondent’s denial.

The court concluded that the six-month suspended sentence was outside the range of reasonable sentences, as the term should have been longer (at least nine to twelve months) and served immediately, given the absence of powerful factors justifying suspension.

However, the court declined to increase the sentence, deciding to provide guidance on sentencing for expert witness contempt and acknowledging fairness concerns in applying that guidance retrospectively. The appeal was therefore allowed on the basis that the original sentence was unduly lenient, but the court substituted no harsher sentence.

Holding and Implications

The court held that the sentence of six months' imprisonment, suspended for two years, imposed on the Respondent for contempt of court was UNDULY LENIENT and WRONG IN PRINCIPLE.

The court declared that the appropriate sentence should have been significantly longer (no less than nine months) and ordered to be served immediately, absent powerful mitigating factors justifying suspension. However, the court did not increase the sentence but allowed the appeal on the basis of undue leniency and provided detailed guidance on sentencing expert witnesses for contempt.

The direct effect is that the Respondent’s sentence was declared unduly lenient, but no new sentence was imposed. The judgment provides authoritative guidance for future cases involving contempt by expert witnesses, emphasizing the seriousness of such conduct, the limited scope for suspension, and the proper assessment of culpability and mitigation.