The case of Calderdale emphasises the serious consequences of exaggerated and fundamentally dishonest claims brought against the NHS.
The Claimant (Ms. Metcalf) pursued a legitimate claim for clinical negligence deriving from delay in diagnosing Cauda Equina syndrome in 2012. The Defendant (Huddersfield Trust) admitted liability for a delay of one day in the Claimant’s treatment, issuing a formal apology to her and agreeing to pay a voluntary interim payment of £75,000.00. The case then proceeded onto the issue of quantum.
The Claimant alleged that she had suffered severe injury as a consequence of the admitted delay in diagnosing Cauda Equina syndrome. Her injuries were alleged to include injury to her bladder and bowels, alongside debilitating limitations to her mobility with the Claimant reporting that she could not walk unaided and was “dependent upon aids such as a wheelchair, a walking frame or sticks” (para 9). On the 21st March 2018, the Claimant presented her condition as “unable to drive at all, and only able to stand supported, without walking sticks, “for a few seconds”. In January 2019, a schedule of loss was served totalling £5,712,773.40.
As a result of inconsistencies in the factual evidence, covert surveillance was obtained by the Defendant. The surveillance revealed that the Claimant had been misrepresenting the scale of her injuries between October 2015 and January 2019, with video footage showing the Claimant had driven herself in the car alone and has disembarked unaided without apparent difficulty. On another occasion, the Claimant went for expert consultation and was videoed standing in the reception area for over 30 minutes unaided. Following disclosure of the footage, the Defendant served an amended defence pleading fundamental dishonesty. Three months before trial the Claimant admitted lying repeatedly between 2015, when she was assessed by her care expert, and 2019, when she served her schedule of loss based on fraudulent misrepresentations in her pleadings, witness statements and in her presentations to experts. It was common ground that the Claimant had sustained a genuine injury but the value of her claim was in fact in the region of £350,000. The Claimant agreed by consent to dismiss her claim, whilst also agreeing to repay the interim payment.
The Defendant applied to commit the Claimant for contempt of court.
Application granted – the Claimant was sentenced to 6 months imprisonment of which 3 months were to be served immediately and then she would be entitled to release (without conditions) for the remaining 3 months of the term.
Citing Liverpool Victoria Insurance Company Limited v Khan and Zafar as the correct approach to assessing and punishing contempt of court, Griffiths J adjudged that “the number of contempt’s, [and] the range of deliberate (not reckless) conduct, covering false statements of truth and the manufacture of false evidence by deceiving expert witnesses on both sides” was contempt serious enough to be placed in the upper bracket of the scale, adopting a starting point of 18 months imprisonment (with 2 years being the maximum sentence). Taking into account points of mitigation, including the Claimant’s full admissions, the sentence was reduced to 6 months.
Griffiths J felt that punishment in this case could not be adequately served by suspending the Claimant’s sentence, finding “appropriate punishment for faking evidence in support a claim inflated by some £5 million can only be achieved by immediate custody”. The Claimant would be entitled to automatic release without conditions, after serving half the term of the committal.
Matthew Phillips QC, a barrister in Outer Temple’s clinical negligence team, commented on the case as follows:
The Judge in this case drew on the CA’s decision in South Wales Fire and Rescue Service v Smith [20011] EWHC 1749 (endorsed by the Supreme Court in Summers v Fairclough Homes Ltd. [2012] 1 WLR 2004) that stressed the need for prison terms to be imposed on those who pursue false claims in order to underline the gravity of dishonest conduct and to act as a deterrence to others. Against that back-drop the sentence imposed in this case might be considered to be on the lenient side given the deliberate and systematic acts of dishonesty carried out over a period of several years together with the fact that the “false” element of the claim amounted to several million pounds. The mitigating factors identified in the judgment were, in the view of this author, unremarkable.
