Fundamental dishonesty: claimant in clinical negligence claim found in contempt of court

In this case, the claimant was sentenced to six months imprisonment for contempt of court in respect of exaggerating injuries suffered as a result of alleged clinical negligence for Cauda Equina Syndrome.

Background

The claim itself concerned an alleged delay in referring the claimant (aged 18 at the time of the treatment) for a neurosurgical assessment for Cauda Equina Syndrome on 18 September 2011. The claimant averred that had she been referred in a timely manner, she would have been offered a spinal operation within 48 hours, which would have prevented further deterioration. As a result of the delay, she alleged ongoing bladder and bowel issues, sexual dysfunction and a weak left ankle.

A liability only hearing was listed for 22 May 2017, however the parties agreed a 50:50 settlement on liability in advance. The settlement covered causation relating to Cauda Equina Syndrome but not in relation to the extent of the claimant’s symptoms and condition or prognosis arising out of the alleged negligence. Directions were given in relation to quantum.

The claimant served a schedule of loss at £4.1 million excluding general damages. The Trust solicitors on behalf of NHS Resolution instructed surveillance agents to monitor the claimant to assess the extent of her injuries.

As set out in the subsequent judgment in respect of the contempt of court proceedings, the video surveillance showed the claimant visiting various supermarkets, and walking “around the stores without any apparent limp, slowness or disability”. The judgment adds that the surveillance showed that the claimant also “walked with a dog on a lead carrying various items” and “it was apparent to any objective observer of those videos” that the claimant’s alleged injuries set out to various experts, “were false and misleading”.

The Trust disclosed the video surveillance and offered to the claimant that she withdraw the claim with no costs order made. This was not accepted by the claimant. Thereafter, the claimant served a witness statement maintaining her injuries and averring that she had not been dishonest.

The Trust served its counter-schedule pleading fundamental dishonesty and quantifying the claim for £34,000 excluding general damages. An application was made by the Trust to strike out the claim.

On 8 April 2019, His Honour Judge Gore QC struck out the claimant’s claim for various breaches of court orders and ordered the claimant to repay interim payments of £45,000.

On 17 February 2020, the Trust commenced contempt of court proceedings. The night before the hearing, the claimant agreed a set of admissions.

Decision

The Honourable Mr Justice Richie found at the contempt of court proceedings that the claimant had made dishonest and misleading statements to four experts in respect of her physical condition. Despite mitigation, Mr Justice Ritchie sentenced the claimant to six months immediate imprisonment remarking: "I do not consider that suspending the sentence will get the message across to you sufficiently strongly that: defrauding the NHS, which is funded by the taxpayer is utterly unacceptable. Nor would it send out the right message to those currently suing NHS trusts or those who will do so in future".

Comment

The judgment confirms how little regard the courts have for claimants who are fundamentally dishonest against the NHS in clinical negligence claims. This case highlights that fundamental dishonesty remains an ever-present issue, which defendants are increasingly willing, and compelled, to explore with surveillance agents to verify the probity of claims made by claimants.