Lord Justice Richards :
- This is the judgment of the court on an application, nominally by Brighton & Hove Bus & Coach Company Limited but in practice by its insurers, to commit the three defendants for contempt of court. The application arises out of a claim made by Mrs Thereza Daoud against the bus company for damages for personal injury sustained when she was knocked down by a bus driven by an employee of the bus company. That claim was eventually settled, in circumstances to which we will come. The first defendant (Mrs Sherihan Brooks) and the second defendant (Mrs Merihan Tynan) are the married daughters of Mrs Daoud. The third defendant (Mr Nabil Tadrous) is their father and Mrs Daoud's husband. Mrs Brooks acted as Mrs Daoud's litigation friend in the personal injury claim.
- The broad nature of the case against the defendants is that, in order to inflate the quantum of damages in Mrs Daoud's claim, they dishonestly misrepresented the extent of the disabilities from which she was suffering as a result of the accident: in particular, they represented her as having very limited mobility when the true position was that for practical purposes she was of unlimited mobility. The false representations are alleged to have been made in the course of examinations or assessments of her by various experts; through the submission, with the particulars of claim, of experts' reports recording such representations; and in the defendants' own witness statements. At the heart of the case is surveillance evidence in the form of video recordings of Mrs Daoud over a period of more than two years, which is relied on as revealing a fundamental mismatch between her actual condition and her condition as represented by the defendants.
FACTUAL OVERVIEW
- The accident involving Mrs Daoud occurred in Brighton on 2 November 2005. She sustained a severe brain injury. It was thought at first that she might die. She was transferred immediately from Brighton to St George's Hospital, Tooting, where she underwent surgery and a period in intensive care before being transferred back to Brighton. After a few weeks she was moved to a rehabilitation unit at Shoreham. She had recovered sufficiently to enable her to return home into the care of her family just before Christmas 2005. The issues in the case relate to the extent of her recovery thereafter.
- Solicitors were instructed on behalf of Mrs Daoud within a few weeks of the accident. Her elder daughter, Mrs Brooks, agreed at an early stage to act as Mrs Daoud's litigation friend, and the claim itself was evidently notified promptly to the bus company though proceedings were not actually issued until October 2008. The bus company's insurers also became involved at an early stage.
- Between notification of her claim and the issue of proceedings, Mrs Daoud was examined or assessed by the following experts, each of whom produced a written report:
i) Mr Robert Maurice-Williams (a consultant neurosurgeon instructed on behalf of Mrs Daoud) on 1 December 2006;
ii) Mr Nick Violaris (a consultant otolaryngologist instructed on behalf of Mrs Daoud) on 19 June 2007;
iii) Mr Paul Staniforth (a consultant orthopaedic surgeon instructed on behalf of Mrs Daoud) on 30 July 2007;
iv) Ms Gazala Makda (a care expert instructed on behalf of the insurers) on 5 November 2007;
v) Mr David A. Johnson (a consultant clinical psychologist instructed on behalf of Mrs Daoud) on 22 January 2008;
vi) Dr Michael L.P. Gross (a consultant neurologist instructed on behalf of the insurers) on 8 May 2008;
vii) Ms Gina Blackney (a care expert instructed on behalf of Mrs Daoud) on 16 May 2008;
viii) Dr Richard Chalmers (a consultant neurologist instructed on behalf of Mrs Daoud) on 12 June 2008.
- Mrs Daoud was accompanied at each of those examinations or assessments either by Mrs Brooks or by Mr Tadrous or by both of them.
- A claim form was issued on 21 October 2008, in the name of Mrs Daoud acting by her daughter and litigation friend, Mrs Brooks. Attached to the claim form were a number of medical reports. Also attached was a preliminary schedule of special damages, which included a sum in excess of £1.4 million in respect of care and case management and intimated that there would be claims for, inter alia, items of equipment, transport costs and the cost of suitable accommodation. It is fair to say, as was submitted by Mr Featherby QC, that the insurers were facing a claim for several million pounds in total.
- After the issue of proceedings and prior to disclosure of the surveillance evidence, Mrs Daoud was examined or assessed by further experts, as follows (and again they each produced a written report):
i) Mr David Barwood (an occupational therapist instructed on behalf of Mrs Daoud) on 18 April 2009;
ii) Dr David Gill (a consultant psychiatrist instructed on behalf of the insurers) on 21 April 2009;
iii) Dr Christopher Plowman (a consultant neuropsychologist instructed on behalf of the insurers) on 4 May 2009;
iv) Dr Richard Bowskill (a consultant psychiatrist instructed on behalf of Mrs Daoud) on 18 May 2009.
- Again, Mrs Daoud was accompanied on each occasion either by Mrs Brooks or by Mr Tadrous or by both of them.
- On 25 March 2009, judgment in the claim was entered for Mrs Daoud on the basis of a 50:50 apportionment of liability. Each of the defendants then made a witness statement, with a signed statement of truth, in support of the damages element of the claim. The witness statement of Mrs Brooks was dated 5 May 2009; those of Mrs Tynan and Mrs Tadrous were dated 7 May 2009.
- In mid-2009 the insurers' surveillance evidence was disclosed to Mrs Daoud. The evidence covered a period of over two years, from 23 May 2007 to 17 July 2009.
- On 1 October 2009 each of the defendants made a further witness statement, responding to the surveillance evidence.
- The claim, which had been commenced in the Brighton County Court but was transferred to the High Court in June 2009, was listed for trial in October 2010. A few days before the trial, however, Mrs Daoud settled the claim for the net sum of £40,000 (i.e. £80,000 at full liability). Because there had been a Part 36 offer in that amount in February 2008, before the proceedings started, Mrs Daoud agreed to pay all the bus company's costs since the date of the offer, on the indemnity basis.
- The insurers' application for permission to bring proceedings for contempt of court was issued on 1 December 2010. On 16 February 2011 the Divisional Court granted permission and made directions for trial. The trial itself took place before us over a five day period between 20 and 27 July 2011.
THE EXPERTS' REPORTS
- The experts' reports considered in this section are relevant for the representations of fact that they contain (i.e. their recording of the representations made to the experts by Mrs Daoud and the defendants), not for the expert opinions expressed in them. In accordance with directions given by the Divisional Court, the passages containing representations that the insurers sought to prove were sidelined and numbered; admissions were sought in writing; and the defendants made certain formal admissions and comments in a written response. This process led to the calling of a number of the experts as witnesses of fact in respect of matters that were not admitted or not clearly admitted. We come back to that evidence later. We confine our attention here to what is said in the reports themselves.
- Although the focus of the case is on a number of statements and representations relating to Mrs Daoud's mobility, they have to be looked at in context since it is necessary to consider the overall impression conveyed to the experts. Moreover, the attack on the defendants' credibility brings in other parts of the reports. Our quotations from the reports do not cover all the material relied on but seek to include the most important passages, including in particular those set out in Appendix C to Mr Featherby's skeleton argument. We have highlighted the passages on which the specific allegations of contempt appear to be based.
- By way of background we should mention that on 29 September 2006, prior to the date of any of the reports considered below, an assessment of Mrs Daoud was carried out by Mr Andrew Wilson, an occupational therapist and rehabilitation case manager at an organisation called HCML, for the purpose of completing a full initial needs assessment and report with recommendations for a rehabilitation programme. The referral was made by the insurers with the agreement of Mrs Daoud and her solicitor. Mrs Daoud was accompanied at the assessment by Mrs Brooks.
- Mr Wilson's initial report recorded that at the time of writing Mrs Daoud was not receiving any further treatment for her injuries. Physical symptoms recorded included complaints of pain in the head, left scapula, left hip, left knee and lumbar spine. A section on "formal tolerances" included the following (at page 4):
"Walking – Mrs Daoud requires assistance in mobilising around her home. This is mainly for reassurance purposes only although on days when her mobility is reduced, she requires assistance at her hips to ensure that she remains balanced inside her base of support. In the short periods in which Mrs Daoud is left alone, she is able to 'furniture walk' from her lounge to the dining room where there is a chair which she can rest on. She does not use a walking aid. She is then able to walk a short distance to either her commode or into the kitchen where she can transfer onto a perching stool. When mobilising outdoors Mrs Daoud prefers to have the assistance of one person either side of her rather than to use a walking frame or a wheelchair. She is able to walk with this assistance for periods of up to 10 minutes prior to requiring a rest. She finds this very painful particularly in her left knee. Her daughter states that it is at a very slow pace. Whenever she is mobilising, Mrs Daoud is susceptible to dizzy spells which can cause her to lose her balance.
Stairs – Mrs Daoud requires the use of hand rails on both sides and one person in front and behind to prevent her from falling forwards or backwards. She only has to use the stairs to descend in the morning where she is assisted by two carers, and to ascend at night where she is assisted by her family."
- The report set out a recommended HCML rehabilitation intervention. This came to little, and a later "closure report" recorded that on 30 April 2007 it was decided that in view of Mrs Daoud's slow progress HCML would close rehabilitation services and await further instructions. The slow progress appeared to be based on Mrs Daoud's severely impaired cognitive function, as assessed by Dr Camilla Herbert, a consultant clinical neuropsychologist, on 28 November 2006. In the event, Mrs Daoud's rehabilitation was left largely to her family, whose constant efforts in that direction were described by them in evidence, whilst further assessments of Mrs Daoud took the form of the series of medico-legal examinations and assessments described below, all of them in the context of the prospective or actual personal injury claim.
Mr Maurice-Williams: examination on 1 December 2006
- On 1 December 2006 Mrs Daoud attended an examination by Mr Robert Maurice-Williams, a consultant neurosurgeon instructed on her behalf, at the Neurosurgical Unit of the Wellington Hospital in London. She was accompanied by Mrs Brooks and Mr Tadrous.
- Mr Maurice-Williams's report was dated 5 December 2006. It dealt first with Mrs Daoud's history, stating that this part was dictated in the presence of Mrs Daoud, her husband and daughter to make sure that Mr Maurice-Williams had not misreported or omitted anything, and that Mrs Brooks then added a couple of points. Among the matters recorded are that Mrs Daoud was left with the following residual problems not present prior to the accident: her memory was very poor; her powers of concentration were severely impaired, her powers of comprehension were limited and she was no longer fluent in either Arabic (her native language) or English; she was subject to mood swings and was sensitive and impatient; and her left limbs were weak and painful.
- The report went on to deal with Mr Maurice-Williams's examination of Mrs Daoud. It included the following (at pages 6-8):
"2. Mrs Daoud attended the consultation in a wheelchair during which she sat as I talked to her family. She did not appear to be in any discomfort.
3. Her daughter and husband helped her to dress and undress.
…
7. In the limbs there was poverty of movement of the left limbs but I suspect that this was due to inhibition by pain at the shoulder and hip as there was no evident weakness or change of tone and no sensory loss of corticle inattention. …
8. Although Mrs Daoud attended the consultation in a wheelchair she was able to walk slowly with the help of one assistant. She was unable to walk heel to toe but Romberg's Test was negative."
Mr Violaris: examination on 19 June 2007
- On 19 June 2007 Mrs Daoud attended an examination by Mr Nick Violaris, a consultant otolaryngologist instructed on her behalf, at his consulting rooms in Eastbourne. She was accompanied by Mr Tadrous.
- Mr Violaris's report, dated 2 October 2007, included the following passages under the heading "Present Situation":
"She is very depressed, moody and lacks concentration. Her memory is very poor and she cannot remember meeting people particularly their faces and names.
She was fluent in Arabic and French as well as English but now cannot use her French language and only uses her Arabic partially.
…
She has loss of balance on walking in view of the weakness of the left sided upper and lower limbs. She lacks confidence with walking and can only walk with help. She is using her wheelchair mainly at present.
She is unable to dress or look after herself and therefore needs help with personal hygiene. She is unable to do any housework or cook and feels that she has become housebound."
Mr Staniforth: examination on 30 July 2007
- On 30 July 2007 Mrs Daoud attended an examination by Mr Paul Staniforth, a consultant orthopaedic surgeon instructed on her behalf, at his consulting rooms in Hove. She was accompanied by Mr Tadrous.
- Mr Staniforth's report, which appears to have been dictated on the day of the examination, included this, under the heading "History, Treatment & Progress" (at pages 6-7):
"Mr Daoud tells me that recently attempts have been made by the family to wean Mrs Daoud out of the wheelchair by using a rollator which she is now using for standing & walking.
…
… Mrs Daoud needs help to dress & undress …. She also needs help to go to the toilet & back – I understand that she uses a commode downstairs since the house only has a toilet upstairs. Various adaptations have been carried out to the house. Although there are additional stair rails, she needs help to go up & down stairs."
It is clear that although he mistakenly called him "Mr Daoud", Mr Staniforth was referring to information given by Mrs Daoud's husband, Mr Tadrous.
- Under the heading "Present Symptoms & Complaints", the report included the following (at pages 10-12):
"Mrs Daoud tells me that she has pain almost everywhere but the most painful areas are the left shoulder & lower back – whilst the least painful area is the right shoulder.
…
Both knees hurt particularly when she is going up & down stairs but also when she stands & tries to walk. In general, they are painful all of the time but not specifically when she is sitting.
…
Mr & Mrs Daoud tell me that she gets out of doors with support & can walk with the rollator for no more than 5 minutes – during which time she suffers dizziness, tiredness & eventually has to stop due to pain mainly in the left knee."
- Under the heading "Examination on 30.7.07" the report recorded (at page 12):
"She required help to stand up & walk across the carpeted floor by her husband using a rollator frame. She also required help to get onto & off of the examination couch.
…
I asked Mrs Daoud to stand without support but note that she can only do so for a few seconds – the restriction being related to dizziness as well as pain in her lower back & knees."
Ms Makda: assessment on 5 November 2007
- On 5 November 2007 Mrs Daoud was assessed at home by Ms Gazala Makda, a care expert instructed on behalf of the insurers. Mrs Brooks was present throughout.
- Ms Makda's report, dated 20 December 2007, included the following passages under the heading "Care and Occupational Therapy Assessment":
"Vision/Hearing/Speech
…
7.6 On questioning, Mrs Daoud said she forgets what she wants to say and to express. She responded in short sentences and her speech was slow. Mrs Daoud's daughter informed me that, the day of the assessment was a good day and Mrs Daoud was very cooperative and was able to answer my questions. On questioning, she told me if Mrs Daoud was having a bad day, then she would just sit there, hear the questions but is unable to comprehend to respond. On questioning, I was told that Mrs Daoud had approximately 50% good days and 50% bad days, in a week.
…
Joint Range of Movement / Muscle Strength
7.13 On observation, Mrs Daoud appeared to have restricted neck movements. Her movements were very slow. Mrs Daoud closed her eyes when she was moving her neck and said that otherwise she feels dizzy.
7.14 On observation, Mrs Daoud had restricted movement in her left upper limb. In fact, she did not move her shoulder at all and said it is very painful. She was able to move her elbow, wrist and hand and the movements were very slow and uncoordinated. She told me her left hand was very weak and she does not use it at all due to the pain in her shoulder.
7.15 On observation, Mrs Daoud had restricted shoulder rotational movement in her right upper limb. She had normal movements in her elbow, wrist and hand.
7.16 Mrs Daoud tells me that her left knee gives way. On observation, the movements in her left hip, knee and ankle were fairly restricted, but she was doing it slowly due to general pain and ability.
7.17 Mrs Daoud did very slow movements in her right hip, knee and ankle which is partly due to disuse. She informed me that her right knee also gives way. I was told that Mrs Daoud's left side is weaker than her right side.
Pain
7.18 Mrs Daoud told me that she is in constant pain. She told me that she has pain which radiates up from her back to her neck and her left shoulder. She told me that both her knees are also painful. On a 0 to 10 scale where 0 is no pain and 10 is excruciating pain, Mrs Daoud informed me that her pain level is around 8 with painkillers. …"
- Under the heading "Current Functional Abilities and Activities of Daily Living", the report included this:
"Sitting/Standing/Walking
8.1 Mrs Daoud was sitting on a 3 seater settee. She required assistance to stand up. She was able to walk up to her bedroom downstairs and she walked with a short, shuffling gait holding onto the furniture and then used a Zimmer frame for a short period. Mrs Daoud told me that during the day, she is able to walk around the house; she can walk to the kitchen and dining room. I was told that on a good day, she is taken outside the house, a couple of steps [from?] her front door to get some fresh air. She is also taken out for a drive once a week or so. On questioning, I was told that Mrs Daoud feels dizzy when sitting down or standing up and so someone is usually around to assist her.
8.2 I observed Mrs Daoud negotiate 2 steps; she held onto the banister and the handrail on the stairs and pulled herself up. She did so that one step at a time and found it difficult; her daughter was behind her. I was told that Mrs Daoud's carer usually brings her down in the morning and Mrs Daoud's husband or her younger daughter assist her to walk up the stairs.
8.3 On questioning, I was told that Mrs Daoud does not have a wheelchair and does not wish to have a wheelchair because she thinks she looks more disabled in a wheelchair.
Transfers
8.4 I was informed that Mrs Daoud, although independent with some of her transfers, feels dizzy and so someone is usually close by or assists her. On observation, Mrs Daoud was assisted out of her chair by her daughter. She was able to get in and out of her bed and sit on the bed, however needed assistance from her daughter to lift her legs up. She also needed assistance to sit up in bed.
8.5 On questioning, I was told that Mrs Daoud is independent with regards to her transfers on and off the toilet.
8.6 I was informed that Mrs Daoud needs assistance to get in and out of the car.
8.7 I was informed that the bath has been taken out and a shower has been fitted for Mrs Daoud and she requires assistance with getting in and out of the shower."
- Ms Makda's recommendations on past, present and future care and on equipment included the following:
"19.25 In my opinion, the present care would be very similar to that at the time of my assessment. Mrs Daoud can mobilise from room to room with short, shuffling gait. She holds onto furniture or her Zimmer frame for support. A carer comes in the morning to assist with her selfcare, washing, assisting her to come down the stairs and get her breakfast ….
…
19.29 On questioning, I was told that Mrs Daoud is unlikely to accept a wheelchair or any other equipment."
- Whilst we have highlighted a couple of obviously material sentences, it is fair to say that the general tenor of other passages may also be reflected in the contention, in the particulars of contempt, that "Mrs Daoud demonstrated to Ms Makda that she had only very limited mobility, holding onto things to walk and mount steps, and using a Zimmer".
Mr Johnson: examination on 22 January 2008
- On 22 January 2008 Mrs Daoud attended an examination by Mr David A. Johnson, a consultant clinical psychologist instructed on her behalf, at his consulting rooms in London. She was accompanied by Mrs Brooks.
- Mr Johnson's report stated that his sources of information were a direct interview and cognitive assessment with Mrs Daoud and a separate interview with Mrs Brooks (referred to as Mrs Sherihan Tadrous). Under the heading "Presentation", it stated inter alia (at para 4.1) that "Mrs Daoud walked the short distance to my office, slowly and using a frame for support". Under the heading "Present Condition – Interviews", it included the following:
"8.1 Cognition: Concentration is said to remain poor ….
8.2 Behaviour: Unfortunately Mrs Daoud remains generally anxious, agitated, low in mood, tearful and labile ….
8.3 Physical: Walking remains slow and limited, even with the help of the walking frame. Mrs Daoud complains of pain in her knees and leg, and lower back. She describes the pain as sometimes unbearable, limiting greatly what she can do on a day-to-day basis. I understand that she continues to have a left-sided weakness ….
8.4 Activities: Mrs Daoud spends most of her time sitting in the house watching television. She does manage to coast-walk around the house but there is a degree of risk in her falling. I understand that she is unable to go into the garden alone …."
Dr Gross: examination on 8 May 2008
- On 8 May 2008 Mrs Daoud attended an examination by Dr Michael L.P. Gross, a consultant neurologist instructed on behalf of the insurers, at Gatwick Park Hospital, Horley. She was accompanied by Mrs Brooks and Mr Tadrous.
- Dr Gross's report recorded that Mrs Daoud's history was available primary from her husband and daughter, together with the report of Mr Maurice-Williams and the medical records: Mrs Daoud was not communicative, although she was able to answer questions usually in a monosyllabic fashion. Under the heading "Current Situation", it stated:
"60. I asked Mrs Daoud and her family about the present situation. Mrs Daoud was not really able to engage in conversation. I heard that she had been using a wheelchair though recently a Zimmer frame had been introduced.
…
66. … She is able to walk up a corridor. She has been requiring help for more or less every activity …."
- Under the heading "Examination", the report stated that questions were effectively answered by Mrs Daoud's husband and daughter, the daughter taking the dominant role, and it included the following:
"82. It was very difficult to assess limb power but I got the impression that limb power in fact was either normal or near-normal on the left side compared to what was a left hemiplegia initially. The same applied with regard to leg movement. All movements were very limited by slowness and possibly reduced motivation to move ….
83. She was in a wheelchair throughout but was able to stand with help but was so unsteady on her feet by what I thought was more an anxiety of her situation but it was not possible to actually test her balance in any way."
Ms Blackney: assessment on 16 May 2008
- On 16 May 2008 Mrs Daoud was assessed at home by Ms Gina Blackney, a care expert instructed on her behalf. Mrs Brooks was present.
- Ms Blackney's report, in the form of a proof of evidence dated 12 July 2008, included the following under the heading "Present Situation":
"5.3 Sherihan feels her mother's worst problem is the pain, and the cognitive deficit with very poor memory and concentration, problems with word finding, and severe mood swings. … Mrs Daoud … complains of pain in the left shoulder, her lower back, and her left knee, she also avoids using her left arm because she is fearful of making pain in the shoulder worse.
5.4 Sherihan informs me that her mother attended the Pain Clinic for the first time about two weeks before our meeting ….
5.5 Sherihan feels her mother is at her best two days a week when her father is not working or when they are all at home …..
5.6 Mrs Daoud got up from the sofa with some difficulty pushing up on her feet and her right hand, and she avoids using her left arm. She got up slowly and steadied herself on the mantelpiece before walking very slowly with a shuffling gait, supporting herself on furniture and the walls with her right arm. She then used her frame which she keeps in the study/second reception room. After Mrs Daoud walked the short distance from the sitting room to the breakfast room she was clearly exhausted, and rather breathless.
5.7 Mrs Daoud is always shadowed up and down the stairs and goes up right leg first very slowly dragging her feet, and has a break on the way up ….
5.8 During our conversation Mrs Daoud nearly fell over in the hallway, partly because of problems with balance and dizziness but also because a rug needs to be stuck down, or preferably removed to prevent her tripping over it. … She has lost her balance and fallen trying to stand up as she was giddy, and more recently was distracted and fell when Sherihan was walking her out to the car."
- Under the heading "Routine", the report included the following:
"6.1 Mrs Daoud goes to bed at the same time as her husband between about 11 and 12 midnight. Mr [Tadrous] walks behind her up the stairs, along the landing and up the step to the bedroom. She sits in the side of the bed and her husband helps her to undress and put on her nightdress. She can get into and out of bed and stand supporting herself on a zimmer frame, but she walks in pain and finds it difficult to reposition so sometimes needs help at night. …
6.4 Mrs Daoud can walk from the sitting room to the breakfast room to use the commode during the day. …
6.5 … She showed me how she can make herself a cup of tea but she cannot carry anything as she feels unable to stand or walk unaided.
6.9 Family between them try to take Mrs Daoud out for a drive or short walk most days, which is dependent on how she is feeling. When Sherihan visits her mother mid week she tries to take her out, when Mrs Daoud will use a rollater frame, and supported by Sherihan walk very slowly for 10 to 15 minutes, but she is very fearful of crowds."
Dr Chalmers: examination on 12 June 2008
- On 12 June 2008 Mrs Daoud attended an examination by Dr Richard Chalmers, a consultant neurologist instructed on her behalf, at the Nuffield Hospital, Brighton. She was accompanied by Mrs Brook and Mr Tadrous.
- Dr Chalmers's report, dated 19 June 2008, recorded that Mrs Brooks provided the majority of the history. Under the heading "Progress since the Accident", it stated (at page 9):
"1. The account of Mrs Daoud and her family
Mrs Daoud and her family do not feel that there has been any significant change in her symptoms over the last two and a half years. They feel that they have learned to adapt to her disability. She has a number of continuing problems.
a) Physical disability
Mrs Daoud's mobility is still significantly limited. She is able to walk with a three-wheeled frame perhaps 100 yards on the flat. She requires the use of a wheelchair for longer distances. She manages stairs with aids.
Mrs Daoud and her family find it difficult to define why she continues to have limited mobility. They feel that an element of this relates to low back pain, an element to poor coordination, and an element to dizziness. They also recognise that an element relates to anxiety about the possibility of falling, although she has had no further falls since the time of discharge.
Right upper limb function is normal. She still has some difficulty holding a cup and drinking with her left hand. She cannot feed herself with her left hand. …"
- Under the heading "Current Examination", the report recorded that examination was a little limited by Mrs Daoud's ability to cooperate. It stated inter alia (at page 13):
"Examination of the limbs revealed rather variable increase in tone in the left sided limbs, with normal tone at times. Examination also revealed rather variable weakness in the left sided limbs. Examination of the left upper limb was limited because of pain around the left shoulder, but full power was obtained at times. Examination of the left leg revealed full power at times. …
She walked with a three wheeled frame with rather short steps."
Mr Barwood: assessment on 18 April 2009
- On 18 April 2009 Mrs Daoud was assessed at home by Mr David Barwood, an occupational therapist instructed on her behalf. Mrs Brooks was present.
- Mr Barwood's report, dated 4 May 2009, recorded that the history was obtained from medical reports and discussion with Mrs Brooks. It included the following (at pages iii to v):
"Presenting Problems
…
Functionally she has severely impaired mobility and is cared for by her family ….
Environment
…
The existing accommodation does not suit Mrs Daoud's needs.
The stairs are a particular hazard and, given that Mrs Daoud is at risk of falling, the use of the stairs is fraught with danger. Given that she climbs the stairs under close supervision of her family, if she was to fall they would be unlikely to stop her and there could be severe consequences of serious harm to Mrs Daoud and family members.
…
Chair
Mrs Daoud has significant problems sitting from standing; she was sitting on a low, deep sofa in the lounge on the visit. She struggles to stand due to pain in her back, left side and due to the dizziness she experiences ….
…
Mobility
Mrs Daoud walks around the home using a Zimmer walking frame, or furniture and she walks holding on to things or she holds onto her family. When she walked through to the dining room on the assessment she held the therapist's arm. She walks very slowly and is anxious that she could fall due to her dizziness.
Mrs Daoud avoids movement to avoid the risk of falling, this is very disabling.
Mrs Daoud goes out 2 to 3 times a week with her family in the car, but she finds places with crowds difficult to handle like shopping centres, and including church.
She uses a 3-wheeled walker outside …. There is a wheelchair for outdoor use if required.
Stairs
…
Mrs Daoud only climbs the stairs twice a day, down in the morning and up again in the evening. The family are very concerned that Mrs Daoud could fall on the stairs and there have been some close calls re falls. The family shepherd/ shadow Mrs Daoud on the stairs with one person above and below her on the stairs …."
Dr Gill: examination on 21 April 2009
- On 21 April 2009 Mrs Daoud attended an examination by Dr David Gill, a consultant psychiatrist instructed on behalf of the insurers, at his consulting rooms in Harley Street. She was accompanied by Mrs Brooks and Mr Tadrous.
- Nothing in Dr Gill's report, dated 24 May 2009, touches materially on issues of mobility. The visit to his consulting rooms is, however, important because, as we explain later, what happened outside is the subject of DVD surveillance evidence on which the insurers place substantial weight.
Dr Plowman: assessment on 4 May 2009
- On 4 May 2009 Mrs Daoud was examined at home by Dr Christopher Plowman, a consultant neuropsychologist instructed on behalf of the insurers. Mrs Brooks and Mr Tadrous remained in the house throughout. Dr Plowman's report, dated 15 May 2009, recorded (at para 4.2) that Mrs Brooks was present in the room throughout the initial section of the interview, which consisted of gathering relevant clinical information and developing a rapport with Mrs Daoud. Subsequently, for the neuropsychological assessment, Mrs Brooks vacated the room, but she later rejoined the assessment owing to Mrs Daoud's levels of distress.
- Dr Plowman's report does not contain any significant passages relating directly to Mrs Daoud's mobility. Its primary relevance is twofold. First, it refers to instances where Mrs Brooks corrected things Mrs Daoud had said, for example as to Mrs Daoud's place of birth (para 6.2), or where Mrs Brooks described Mrs Daoud's presentation at the assessment as being "better than usual" and expressed surprise at her levels of engagement (para 8.4): those matters are relevant to Mrs Brooks's credibility. Secondly, the report summarises the results of tests carried out by Dr Plowman, in particular certain test of engagement and effort, in relation to which there was some debate in evidence between Dr Plowman and Dr Laura Bach, a consultant clinical neuropsychologist called on behalf of the defendants. We cover those matters later in this judgment.
Dr Bowskill: examination on 18 May 2009
- On 18 May 2009 Mrs Daoud attended an examination by Dr Richard Bowskill, a consultant psychiatrist instructed on her behalf, at the Priory Hospital, Brighton & Hove. She was accompanied by Mrs Brooks.
- The only part of Dr Bowskill's report, dated 8 June 2009, to which it is necessary to refer is a single sentence in an introductory paragraph under the heading "Mental State Examination":
"4.1 … She walked very slowly into the room with an aide."
We note that the report refers to an "aide", not an "aid"; but as we explain later, we have no doubt that the intended reference was to a physical walking aid, not to a person.
THE CLAIM AND THE WITNESS STATEMENTS
- The claim form issued on 21 October 2008 was signed by Mrs Daoud's solicitor, Mr Hartley, who stated that he was duly authorised by the litigation friend (Mrs Brooks) to sign it. The particulars of claim included the following:
"[Mrs Daoud] has significant mobility problems. She suffers constant pain. … She is totally dependant on others for most day to day activities. She will never work again. She needs constant care and attention. She needs specially adapted accommodation. … The Defendant is referred to the attached medical reports on condition and prognosis."
The medical reports attached were those of Mr Maurice-Williams, Mr Violaris, Mr Staniforth, Mr Johnson, Ms Blackney and Dr Chalmers. We have referred already to the quantum of the claim indicated by the preliminary schedule of special damages.
- Mrs Brooks signed a lengthy witness statement, with a statement of truth, on 5 May 2009. It included the following (where again we highlight passages relied on by the insurers as constituting statements on which specific allegations of contempt are based):
"34. My mum can only move her left arm about halfway up and has no grip. We exercise her by trying to get her to hold a mug, for example. She also has problems with her hip, in fact, as I have said, the whole of her left side is weak. Her range of movement is limited and she suffers a great deal of pain. …
…
50. She is in pain pretty much all the time, on a daily basis, and we try to control this with painkillers. This seems to be reasonably effective, but it does not help mum with the problems she has of weakness and lack of mobility.
…
60. We also try to keep her as physically active as possible. We get her to do exercises to keep her joints mobile and we make sure that she walks every day, even if it just for 10 minutes. When she does go out for a walk, we must make sure that it is a quiet time of the day, as she gets disturbed by lots of people, by traffic, etc.
…
62. My mum and dad's house is rented from the Church. It is a small, 3-bedroom, terraced house and it is difficult for my mum to get around, not only because of the stairs, but because there are also steps between some of the rooms. To get from mum's bedroom to the bathroom, you have to go down a sizeable step, which she sometimes forgets about and trips over …."
- Her sister, Mrs Tynan, signed a witness statement, with a statement of truth, on 7 May 2009. Particularly relevant passages are these:
"36. Mum's daily routine is that she tends to sit on the sofa most of the day. She still only really feels safe going out with dad. As I have said, she will go out with us, but is more anxious. She will not go out with other people who help, such as her friends from church and we are not to[o] confident about her going out with her sister ….
…
44. Physically, her mobility is very poor. She is in a lot of pain and she is weak down her left side. For example, we have to cut her food up for her and she just uses a [fork] in her right hand. She is in a lot of pain on a daily basis; you can tell when she tries to move, but does not like to show it. She also gets very frustrated.
45. When she first came home, there was some improvement in her condition. However, I would say that there was no great improvement in her mobility or the physical aspect of her condition, but there was definitely an improvement in her mood and the emotional aspects. Emotionally, she feels safer. Physically we do try and make her move and walk, but she only tends to respond to us and does not really listen to the carers, for example."
- Their father, Mr Tadrous, likewise signed a witness statement, with a statement of truth, on 7 May 2009. It included the following:
"29. Our house is quite small. It is difficult for my wife to walk very far, partly because, I think, she has lost her confidence, but also partly due to her physical pain and disability, such as the fact that she is generally weak down her left side since the accident. She also finds it very difficult going up and down stairs; we always try and make sure that one of us is with her when she is on the stairs as she has fallen a number of times in trying to get up and down them. There are also steps, e.g. between the bedroom and the bathroom, which are difficult for Thereza.
…
31. Thereza cannot really carry out even the simplest of normal, everyday tasks, like making a cup of tea or cooking anything. The girls and I do all of the cooking.
32. Thereza's present condition is that she still suffers a lot of pain, especially in her lower back. She cannot move her left arm properly at all and so she cannot shower or dress herself etc. She gets dizzy every time she gets up or gets out of bed. She cannot walk very far; she gets tired and out of breath and has had a few falls."
- Those witness statement all pre-dated the insurers' disclosure of the surveillance evidence, to which we now turn.
THE SURVEILLANCE EVIDENCE
- The surveillance evidence, consisting of video recordings supplied on DVDs, was obtained by operatives of a company called Monitor Investigation, over a period of more than two years. The total length of the DVDs is almost 8½ hours. An abridged version lasting just over 2½ hours was made available for viewing by the court prior to the hearing. In addition to the abridged version, we have viewed selected parts of the full recordings.
- A helpful summary of the DVDs, with a brief commentary on each recording by reference to date and time, was provided in Appendix B to Mr Featherby's skeleton argument. Mrs Brooks disagreed with, or made observations on, a few parts of the commentary when she was taken through it in the course of her cross-examination. Its general accuracy was, however, accepted and has been confirmed by our own viewing of the DVDs. The following is drawn from it, omitting much detail and including reference to some of the points of dispute. It excludes recordings of limited significance, on 13 November 2007, 9 and 10 March 2009 and 17 July 2009.
Wednesday 23 May 2007
- This is the first recording. It shows Mrs Daoud leaving her house with Mr Tadrous and walking to the car, into which she gets without assistance. She is taken to the hairdresser, where she remains for most of the period of the recording. While sitting in the hairdresser's chair, she is seen at various times to move her neck freely; to put both hands up to her neck and head to feel her hair; to smile and nod at the hairdresser, and to smile while talking to other people; to get up easily from the chair, to which she returns after a few minutes; to stretch forward to pick up a glass of water; and to operate and have a conversation on her mobile phone (there is an issue as to whether at one point she is sending a text message). After about an hour her younger daughter, Mrs Tynan, arrives. They kiss and have a brief conversation. Mrs Tynan then sits on Mrs Daoud's lap for a couple of minutes before moving to sit in an adjacent chair and continuing the conversation. Later, on leaving the hairdresser, Mrs Daoud is happy and smiling. She meets Mr Tadrous by the car, walks back to the hairdresser to meet her daughter, with whom she returns to the car. She gets in and is driven away. A further shot, a few minutes later, shows her walking normally across a road to the car, putting something in through the car window and then walking back across the road.
Thursday 24 May 2007
- A recording the following day shows Mrs Daoud walk first across the road from her house and along the pavement to post a letter, and then walk back to the house. About half an hour later she is seen getting into a car with her younger daughter, Merihan. The car is driven off and parked near the marina. Mrs Daoud takes a relaxed walk with her daughter, holding hands, along the promenade by the marina. They then walk into a shopping centre and visit various shops. After about half an hour they leave the shopping centre and go to a café, where they stay for about 40 minutes. During that time Mrs Daoud is seen using a mobile phone, laughing and smiling (and also, it is suggested, using her left hand to lift up a glass). Afterwards they get up and walk back to the car. On their way home they stop at a cash machine, which both of them use. On reaching home Mrs Daoud gets out of the car, walks across the road, unlocks the front door and enters the house.
Sunday 15 July 2007
- This recording relates to the wedding day of Mrs Daoud's elder daughter, Sherihan. It shows Mrs Daoud leaving the house, getting into the car and arriving at the church, where she stands on the pavement talking to other guests and turning her head frequently. She goes up some steps into the church, holding onto the handrail towards the top. After the service she comes out of the church, smiling and talking to other guests. In due course she gets into the car.
- She arrives at a hotel car park for the reception. She stands in the car park talking, kissing friends and relations, smiling, looking animatedly around and pointing people out. She also talks on her mobile phone. She walks with a slight limp, which it is suggested may perhaps just be the result of wearing heels on gravel. She walks across the car park into the hotel. A few minutes later she is seen walking around the hotel garden. She talks animatedly and smiles. She is carrying a glass and she drinks from it as she walks. She hands it to others as she talks on her mobile phone. She also puts it on the ground a couple of times. She walks awkwardly up a short flight of steps and holds onto a man when she reaches the top. She sits at a table with her legs crossed in a relaxed manner and engages in relaxed, happy conversation. She walks across the garden holding her husband's hand. He and another man take her arms when she walks down steps. She hugs the bride. A few minutes later there is a sequence where she has taken her shoes off. She walks slightly awkwardly up some steps, then trots up the next set of steps, uses her mobile phone, walks easily back down the steps, and trots up them again before sitting at a table. At various later stages of the recording she stands, walks, sits and talks, until finally she walks from the garden into the hotel, carrying her shoes. The elapsed time from arrival at the hotel car park to walking back in to the hotel is about 1½ hours.
Monday 12 November 2007
- This recording starts with Mrs Daoud signing for a delivery at her front door, seemingly smiling at the delivery man. About 10 minutes later she leaves the house and walks with her sister to Sainsbury's. The walk, described as more of a stroll at times, lasts about 40 minutes. It takes them first along the street, where they walk arm in arm, and later on a path across the park, where their arms are not linked. Inside Sainsbury's the shopping lasts about 40 minutes. There is then a break in the recording, explained by evidence that Mrs Daoud and her sister stopped for coffee. After that, Mrs Daoud is seen helping to load carrier bags into the boot of a car (driven, we were told, by the sister's son). She gets into the car, which is driven to the sister's house. On arrival she is seen helping to unload the car: she walks to the house carrying at least two shopping bags in each arm.
Thursday 3 July 2008
- The start of this recording again shows Mrs Daoud walking to the post box. The main sequence, however, shows her engaged in conversation with others by a river and then, a little later, strolling around Eastbourne town and pier. The people she is with are her husband and, as we were told in evidence, best friends of theirs from Egypt. In the course of her stroll she leans over benches to look over the balustrade of the pier, eats food while walking, and browses in shops. She eventually goes into a shopping centre. By the time she gets into the car again she has been continuously on her feet for a period of at least 3 hours.
Friday 4 July 2008
- On this occasion Mrs Daoud is taken by car into Brighton, walks through a multi-storey car park and then strolls through shopping streets, where she window shops and engages in conversation with her companions. They sit down in due course outside a coffee shop, resume strolling, and then return to her home by bus. The total trip takes over 3½ hours.
Tuesday 21 April 2009
- This was the day of Mrs Daoud's examination by Dr Gill. Just before 08.00 her husband is seen putting a Zimmer frame and other items in the back of the car. They get into the car and drive to the home of their elder daughter, Sherihan, in Guildford. On arrival, Mrs Daoud gets out of the car, closes the door, walks alone along the pavement carrying bags, and enters the house. About 1½ hours later, at 10.51, they leave Guildford in Sherihan's car and drive to Tooting: it is evident from what follows that the Zimmer has been transferred to Sherihan's car. On arrival at Tooting, Mrs Daoud gets out and, with her husband, walks and strolls, window shops, goes into Sainsbury's and then into Tooting market. When they stop at a café at 12.49, she has been walking and standing continuously for 76 minutes. On leaving the café, she walks along the streets and waits by the roadside until picked up by Sherihan.
- They then drive into the centre of London and arrive at 14.24 in a street near Harley Street. Mrs Daoud gets out, stands in the road beside the car, then walks round the car to the pavement. Then she crosses the road with her husband and daughter and walks along the pavement, holding her husband's hand (the evidence was that they went to John Lewis). Just over an hour later they return. Sherihan hands Mr Tadrous the keys to the car while she and Mrs Daoud wait by the roadside. Mr Tadrous walks to the car and fetches the Zimmer from it. On seeing him return, Mrs Daoud walks towards him, held on one side by her daughter and holding onto the railings on the other side. Mr Tadrous unfolds the Zimmer. Mrs Daoud then walks slowly with the Zimmer, with what is described as an anxious, drained expression on her face. She is helped by her husband up the steps to Dr Gill's consulting rooms. She goes inside. On coming out after the examination she is using the Zimmer. She is helped by her husband down the steps and into the car which Sherihan has driven up.
THE INSURERS' CASE
- The essence of the insurers' case is set out in the following extract from Mr Featherby QC's skeleton argument for the hearing:
"23. The Claimants' case involves contrasting the assertions about Mrs Daoud's mobility to the experts and in the witness statements with what is seen on the DVDs. The Defendants have failed to produce an explanation for the chasm between the two. When this contrast is made there can be no explanation for it other than that Mrs Daoud and the Defendants conspired to give a wholly false account and impression of the sequelae of Mrs Daoud's injuries. A person in the condition asserted in the original claim would be entitled to very substantial damages; a person in the condition seen in the surveillance evidence would recover only a small fraction of such damages (as, indeed, eventually happened). The Defendants' only motive can have been dishonest financial gain.
24. The issue for the Court – which is one of fact – is whether the Defendants' descriptions and presentations of Mrs Daoud's mobility was so exaggerated as to amount to criminality.
25. As stated above, the Claimants' focus is on Mrs Daoud's locomotor abilities. This is because the contrast can be proved so straightforwardly for the purposes of this application. However, the Claimants make it clear that they do not accept for one moment that, by the time the DVDs were recorded, Mrs Daoud was suffering anything like the severity of the other sequelae also alleged. The parts of Mrs Daoud's presentation the Claimants dispute are 'sidelined' in the reports in the first two trial bundles. Although these aspects do not form part of the pleaded case against the Defendants and are not essential to the finding of contempt, the Court will be invited to find that the whole claim was exaggerated grossly beyond anything conscionable. What happened went way beyond the product of an injured person's and her family's natural anxiety to see that she was understood; it went firmly into criminality."
- In relation to the DVDs, the sequence on 21 April 2009 when Mrs Daoud visited Dr Gill is referred to in para 13 of the skeleton argument as particularly flagrant and disgraceful. It is described in this way:
"The party arrived early in London and spent time window shopping and visiting a café. No sign of disability is seen. Then, when Mrs Daoud arrived in a street around the corner from Dr Gill's consulting rooms in Harley Street, a walking aid was produced from the boot of the car. Mrs Daoud, with the connivance of the First and Third Defendants, used it to hobble as if seriously disabled in and out of the building where the examination took place. This sequence shows beyond doubt that the presentation to the experts in the original proceedings was a sham."
- The specific allegations against the defendants are set out as "counts" in a schedule to the particulars of contempt on the basis of which permission to bring these proceedings was granted. The counts in Part A of the schedule relate to specific statements and representations, those in Part B relate to overall conduct. Although the language of "counts" is drawn from trial on indictment and is not entirely apposite in proceedings of this kind, the approach adopted has the merit of precision. In summary, the counts break down as follows.
- First, there is a group of counts alleging that statements or representations made in the course of examinations or assessments by the experts were false; that the defendant or defendants who attended the relevant examination or assessment knew or intended those statements or representations to be made to the insurers and the court for the purpose of assessing Mrs Daoud's damages, connived in making them, knew them to be false, did not have an honest belief in their truth, and knew or intended that the same, if persisted with, would interfere with the administration of justice. In quoting previously from the experts' reports, we have highlighted the passages relied on for these counts but have also given some of the context of those passages. Taking the examinations and assessments in chronological order, the specific statements and representations alleged in the counts, and the respects in which they are alleged to have been false, are as follows:
i) Mr Maurice-Williams, 5 December 2006: "Mrs Daoud attended in a wheelchair; and demonstrated that she was only able to walk slowly with the help of one assistant. These representations were false in that Mrs Daoud did not need a wheelchair; in that she was not limited to walking slowly; and in that she did not require assistance with walking" (count 15, against Mrs Brooks and Mr Tadrous).
ii) Mr Violaris, 19 June 2007: "Mr Violaris was told and/or had it demonstrated to him that Mrs Daoud lacked confidence with walking and could only walk with help; that she was using her wheelchair mainly at present. The statements and/or representations were false in that Mrs Daoud did not lack confidence with walking and could not only walk with help" (count 13, against Mr Tadrous alone).
iii) Mr Staniforth, 30 July 2007: "[Mrs Daoud] told him that she had pain almost everywhere. She demonstrated to him that she required help to stand up and walk across the carpeted floor by [Mr Tadrous] using a rollator frame; and that she required help to get onto and off the examination couch. These statements and/or representations were false in that Mrs Daoud did not have pain almost everywhere; in that she did not require either human help or the use of a rollator frame to walk; and in that she did not need help to get onto and off the examination couch" (count 14, against Mr Tadrous alone).
iv) Ms Makda, 5 November 2007: "Mrs Daoud demonstrated to Ms Makda that she had only very limited mobility, holding onto things to walk and mount steps, and using a Zimmer. These representations were false in that Mrs Daoud did not have only very limited mobility; in that she did not need to hold onto things to walk and mount steps; and in that she did not need a Zimmer" (count 7, against Mrs Brooks alone).
v) Mr Johnson, 22 January 2008: "Mr Johnson was told and/or had it demonstrated to him that Mrs Daoud's walking remained slow and limited, even with the help of the walking frame; and that her walking was limited to coast walking around the house but with a risk of falling. These statements and/or representations were false in that Mrs Daoud's walking was not slow and limited; in that she had no need of a walking frame; and in that her walking was not limited to coast walking round the house with a risk of falling" (count 8, against Mrs Brooks alone).
vi) Dr Gross, 8 May 2008: "Mrs Daoud remained in a wheelchair throughout. Mrs Daoud and/or [Mrs Brooks] and/or [Mr Tadrous] told Dr Gross that Mrs Daoud had been using a wheelchair though recently a Zimmer frame had been introduced; that she had been requiring help for more or less every activity. These statements and/or representations were false in that Mrs Daoud did not need a wheelchair or a Zimmer; and in that she did not require help for more or less every activity" (count 16, against Mrs Brooks and Mr Tadrous).
vii) Dr Chalmers, 12 June 2008: "Dr Chalmers was told and/or had it demonstrated to him that walking was limited to perhaps 100 yards on the flat with a three-wheeled frame; that she required a wheelchair for longer distances; and that she managed stairs only with aids. These statements and/or representations were false in that Mrs Daoud's walking was not limited to 100 yards; in that she did not need a frame; in that she did not require a wheelchair; and in that she managed stairs without aids" (count 17, against Mrs Brooks and Mr Tadrous).
viii) Mr Barwood, 18 April 2009: "Mrs Daoud demonstrated to him that she walked around the house using a Zimmer walking frame or holding onto the furniture. Mrs Daoud and/or [Mrs Brooks] told him that Mrs Daoud used a 3-wheeled walker outside and that there was a wheelchair if required. These statements and/or representations were false in that Mrs Daoud did not need to use a wheelchair or a Zimmer; and in that she did not need to hold onto furniture to walk around" (count 9, against Mrs Brooks alone).
ix) Dr Bowskill, 18 May 2009: "Mrs Daoud demonstrated to him that she walked very slowly into the room with an aide. This representation was false in that Mrs Daoud did not need to walk very slowly or to use a walking aide" (count 10, against Mrs Brooks alone).
- The way in which the particulars of falsity under those counts are expressed encompasses a number of possibilities. One is that the relevant statement or representation was made by the defendant herself or himself, by what she or he said directly to the expert concerned. A second is that the statement or representation was made by Mrs Daoud and that the defendant concerned connived in the making of the statement or representation (i.e. he or she conspired with Mrs Daoud that it should be made). A third is that the statement or representation was made by Mrs Daoud without the connivance of the defendant concerned, but that the defendant deliberately failed to correct it. As to that, Mr Featherby submitted that if a member of the family with full capacity attended an examination or assessment and knew that Mrs Daoud was misleading the expert yet allowed the false statement or representation to go forward, knowing the use to which the statement or representation was to be put, it would amount to contempt. He said that this would apply a fortiori to Mrs Brooks, given her position and responsibilities as litigation friend, but he also relied on the argument against Mr Tadrous in respect of the examinations and assessments that Mr Tadrous attended. None of these points applies to Mrs Tynan, who did not attend any of the examinations or assessments.
- The second group of counts, against Mrs Brooks alone, is based on the fact that certain of the experts' reports were attached to the particulars of claim, which were signed with due authority on behalf of Mrs Brooks (as litigation friend) by a solicitor instructed by her to do so. It is alleged that by authorising and instructing the solicitor to sign the particulars of claim with such declaration, she intended the insurers and the court to believe that the statements or representations in the attached reports were true. In each count it is alleged that she knew the specified statements or representations to be false, she did not have an honest belief in their truth, and she knew or intended that the same, if persisted with, would interfere with the administration of justice. The reports to which the counts relate are those of Mr Maurice-Williams (count 1), Mr Violaris (count 2), Mr Staniforth (count 3), Mr Johnson (count 4) and Dr Chalmers (count 5).
- The third group of counts is based on the statements we have highlighted in the witness statement each defendant made in support of Mrs Daoud's claim. In each case it is alleged that the statements were false, the defendant knew the statements to be false, he or she did not have an honest belief in their truth, and he or she knew or intended that the same, if persisted with, would interfere with the administration of justice. Those allegations are the subject of count 6 (Mrs Brooks), count 11 (Mrs Tynan) and count 12 (Mr Tadrous).
- The fourth and final group of counts, in Part B of the schedule, relates to overall conduct. Count 18 alleges that in so far as the court finds that the defendants or any of them made a claim that was fraudulent intending thereby to gain damages for Mrs Daoud to which she was not entitled (as set out in Part A), they thereby attempted to interfere with the course of justice and are in contempt of court. Count 19 alleges that in so far as the court finds that the claim was founded on a statement that was false or misleading and that a defendant knowingly acted in such a way as to perpetuate such claim intending thereby to gain for Mrs Daoud damages to which she was not entitled, that defendant thereby attempted to interfere with the course of justice and is in contempt of court. Count 20 alleges that in so far as the court finds that a defendant made or caused to be made a false statement in the claim without an honest belief in its truth (as set out in Part A), that defendant thereby attempted to interfere with the course of justice and is in contempt of court.
- Mr Featherby made clear that those three counts relating to overall conduct (counts 18-20) were based on the specifics in Part A (counts 1-17) and were not intended to introduce additional allegations. He described them as explanatory or "wrap-up" counts.
- More generally, whilst relying on the various individual counts in the schedule for the purposes of analysis, Mr Featherby invited the court at the end of the day to make a single overall finding of contempt of court against each defendant, with reasons for so doing and with its opinion about the gravity of the conduct found to constitute contempt.
- Whilst the counts in the schedule to the particulars of contempt are the main focus of attention, the extract quoted above from Mr Featherby's skeleton argument shows that the case of gross exaggeration goes much wider. That the wider case was being put against the defendants was apparent from the outset. The affidavit of the insurers' solicitor, Mr Mark Whittaker, in support of the application for permission to bring proceedings for contempt advanced the contention (at para 22, under the heading "The Applicants' case") not only that Mrs Daoud was physically fit and had few, if any, locomotor problems, but also that if she had any orthopaedic, neurological or psychological symptoms at all, they were minimal, and that she had no or scant need of care. Mr Whittaker asserted it to be an irresistible inference from the conduct of Mrs Daoud and the defendants that she and they had known since mid 2007 at the latest that her claim was largely fraudulent. On the issue of fraud, attention was also drawn in the course of Mr Featherby's submissions to the concerns that have been expressed judicially about the prevalence of fraudulent claims and the gravity of the situation which faces insurance companies which have to contend with them: see Shah v Ul-Haq and Others [2009] EWCA Civ 542 at [13]. All this goes to show how high the case has been put against the defendants.
THE DEFENDANTS' CASE
- The defendants admit that most of the statements and representations relied on against them were made, but this is subject to a number of qualifications. In relation to some of the statements and representations there are issues as to whether they were made at all, or as to who made them, or as to how they are to be interpreted. Those various matters are considered later.
- The defendants contend that the presentation of Mrs Daoud to the experts was genuine: she would become extremely anxious and "freeze up" when attending an examination or assessment, which is why she would resort to walking aids and have such limited mobility in those circumstances. It is said that what is seen on the surveillance DVDs is very different because on all those occasions save the day of the visit to Dr Gill (when the effects of her anxiety are evident in the period immediately before and after the actual visit to the consulting rooms) Mrs Daoud was in the presence of close family or friends, had their support and encouragement, and was happy and relaxed. The day of Sherihan's wedding and the trips out with close friends from Egypt are notable examples; but even when Mrs Daoud went out to post a letter, somebody was watching her from the window.
- The defendants' evidence deals at length with the effect of the accident on Mrs Daoud in relation to cognitive and psychological functioning as well as mobility, and with the care devoted to her by her family and the efforts made by them to promote her rehabilitation. That has included help and encouragement with a range of activities including those seen on the DVDs, such as going out for walks, going to the hairdresser (which is said to have been an achievement requiring a great deal of planning), use of a mobile phone (though it is denied that she is able even now to send text messages) and drawing cash from a cash machine (for which it said that she still requires a piece of paper with her PIN number on it). All this evidence is directed towards meeting the insurers' wider case that there is very little wrong with Mrs Daoud at all and towards assisting with the context of what one sees on the DVDs.
- At the heart of the defence, however, is a denial of fraud or dishonesty. All the defendants are of positive good character, with the benefit of strongly favourable character evidence, which weighs in their favour both in assessing their credibility and in determining whether they have been shown to have acted fraudulently and dishonestly as alleged. Perhaps just as importantly, Mr Hogarth QC's closing submissions on their behalf pointed to how matters might have been expected to be put in the particulars of claim and the defendants' witness statements if it had been their intention fraudulently to represent that Mrs Daoud was unable to go out to any significant extent, or to walk without a walking aid, or to participate in normal activities; whereas what one actually finds is, in his submission, very different - a moderate case, consistent with what one sees in the surveillance DVDs and with what the defendants and their witnesses have told the court in evidence. All this is said to be irreconcilable with the dishonest fabrication of a case so as to obtain for Mrs Daoud a large sum of compensation to which she was not entitled.
THE APPLICABLE LAW
- There was no dispute before us as to the applicable law. We are concerned both with the general law of contempt of court and with the effect of CPR 32.14. In each case the burden of proof is on the insurers, to the criminal standard.
- CPR 32.14 provides that proceedings for contempt of court may be brought, with the permission of the court, against any person if he makes or causes to be made a false statement in a document verified by a statement of truth without an honest belief in its truth. It has been held in that context that the applicant must prove beyond reasonable doubt, in respect of each statement relied on, (a) the falsity of the statement, (b) that the statement has, or if persisted in would be likely to have, interfered with the course of justice in some material respects, and (c) that at the time it was made, the maker of the statement had no honest belief in the truth of the statement and knew of its likelihood to interfere with the course of justice: see per Coulson J in Walton v. Kirk [2009] EWHC 703 (QB), at [9].
- Mr Featherby submitted, and Mr Hogarth did not disagree, that the same approach was applicable to statements or representations falling outside CPR 32.14 but alleged to constitute a contempt under the general law. He therefore proceeded on the basis that in each case the insurers had to prove beyond reasonable doubt the following four matters:
i) that the statements and representations relied on were made;
ii) that they were false;
iii) that they were likely to interfere with the course of justice in some material respects; and
iv) that at the time they were made, the maker had no honest belief in their truth and knew of the likelihood that they would interfere with the course of justice.
- That appears to us to cover the essential elements of the contempt of court alleged and to provide a convenient framework within which to examine the issues, though we note that it is also necessary to accommodate the various ways in which the case is put in respect of the statements and representations made to the experts, i.e. that the defendant concerned made them, alternatively connived in them being made, alternatively failed to correct them; and it is also necessary to accommodate the case against Mrs Brooks based on the fact that the particulars of claim had medical reports attached to them which contained allegedly false statements and representations.
- Before considering each of Mr Featherby's headings in turn, we make some preliminary observations about the case and the evidence we heard.
PRELIMINARY OBSERVATIONS
The defendants
- It emerged very strongly from the evidence we heard that Mrs Daoud's family are close and protective of one another. The protectiveness of Mrs Brooks and Mrs Tynan towards their mother was evident both in their written statements and affidavits and in their oral evidence to the court. Mrs Brooks identified her role as being to take care of the litigation; she made clear that neither her father nor her sister was involved in the litigation process. When giving evidence, Mrs Tynan refused to answer any question which she perceived could implicate either her sister or her father. To a lesser extent, Mr Tadrous took the same course. That his was a less determined effort was more a reflection of his age and his ability to deal with the court process than the result of any lack of feeling towards his wife or his daughters. In the light of the evidence, we do not doubt that the great distress shown by the family, in particular by the daughters, at what proved to be an unsuccessful attempt to call Mrs Daoud as a witness (she got as far as the witness box but did not take the oath) was entirely genuine on their part.
- Mrs Brooks, the elder daughter, came across as an intelligent, astute, articulate, professional woman. The role of litigation friend would clearly have been well within her capabilities. It is of note that she herself phoned her solicitor from Paris prior to the expiration of the limitation period in order to ensure that proceedings were instituted within time. When answering questions, she demonstrated a detailed understanding of the issues in the case and a detailed knowledge of the full version of the surveillance DVDs. She also demonstrated an ability quickly to identify difficulties in the questions. She frequently sought clarification of such questions and in answering would, on occasion, avoid the real question being asked.
- Mrs Brooks insisted in her evidence that she did not read the experts' reports thoroughly or consider it her role to correct any errors in them. We found her evidence on that very difficult to accept. Given the role of litigation friend which she took upon herself, her protectiveness of her mother, her attention to detail and her intelligence, we think it inconceivable that she failed to read the reports with care or to appreciate the importance of correcting material errors in them.
- In similar vein, she said in her evidence that when she attended examinations or assessments with Mrs Daoud she did not consider it to be her responsibility to correct, and she would not have corrected, any incorrect information or false impression conveyed to the experts by her mother. We think it inconceivable that she did not understand the purpose of those examinations and assessments within the legal process, or the significance of her own position as litigation friend. In those circumstances, and given her knowledge of her mother and her attention to detail, it is difficult to accept that she would not have corrected her mother – unless she perceived that it was in the best interests of her mother for incorrect information or a false impression to be conveyed. It is also highly probable that she would have been active in volunteering information on behalf of her mother, both on those occasions when she alone attended with her mother and on the occasions when her father was also present. Our views on those matters also derive support from passages in the experts' reports. For example, when Mr Maurice-Williams dictated his summary of Mrs Daoud's history in the presence of Mrs Brooks and Mr Tadrous, Mrs Brooks added a couple of points. During the assessment by Ms Makda she made sure that Mrs Daoud's cooperativeness did not give a false impression, describing the day of the assessment as "a good day" and contrasting that with what would happen on a bad day. During the examination by Dr Plowman she corrected factual errors by Mrs Daoud and described Mrs Daoud's presentation as being "better than usual".
- Overall, even after giving due weight to good character, we have to say that we have serious reservations about Mrs Brooks as a witness.
- Mrs Tynan, the younger daughter, also came across as an intelligent and astute woman. Her precision and attention to detail were reflected in what she said about her response to the first draft of her original witness statement, prepared by her solicitor: she said that it sounded as though a 9 year old had written it, and she asked the solicitor to produce a revised version before she was willing to sign it. The same characteristics were also evidenced by her knowledge of the surveillance DVDs. At the core of her evidence was a concern not to implicate any member of her family. Her responses to questions, when she was willing to answer them, were careful and precise; and, like her sister, she would seek clarification of questions from time to time. But her persistent refusal to answer questions became the leitmotif of her evidence. The overall result is that in her case too, after giving due weight to good character, we have serious reservations about her evidence, though the narrowness of the case against her makes this of little practical consequence.
- Mr Tadrous, the husband of Mrs Daoud, is also an intelligent person, having formerly been a maths teacher though he now works as a hotel concierge. But he had the appearance of a man old for his years, whose own health was not of the best. Of the defendants, he presented as the one least able to understand the litigation process, and we have no difficulty in accepting that he let his elder daughter take the lead in Mrs Daoud's litigation. He was an emotional and garrulous witness, who was unconvincing in his denials of, or professed inability to remember, what was said to the experts. In answer to a specific question concerning Mrs Daoud's mobility, "Was this statement true or false?", he responded "How can I know?" In essence, he was attempting the same line of response as his daughters but he lacked the shrewd, hard headed intelligence which they displayed. One of the lines he took in evidence was that what took place in a medical examination was a matter between the doctor and Mrs Daoud alone, and that it was not for him to interfere (for example, to correct an obviously incorrect statement by Mrs Daoud about her mobility) unless he was asked something by the doctor. We found that evidence unconvincing. Thus, in his case too, after giving due weight to good character, we have serious reservations about him as a witness.
- We have expressed our reservations about the credibility of each of the defendants. The specific allegations of dishonesty against them are considered later.
Other defence witnesses of fact and character
- Mr Edward Brooks, the husband of the first defendant (their marriage in July 2007 is an important part of the surveillance evidence), was a cool and intelligent witness. He kept his answers short and sometimes sought an explanation or clarification of the question before answering. In his description of Mrs Daoud's walking ability he gave the impression of wanting, understandably, to support his wife and her family, but some of his answers to the effect that he had not seen her use walking aids were highly damaging to the defendants' case. In our judgment, he was an essentially honest witness.
- Mr Kevin Tynan, the husband of the second defendant (they were married in February 2011), also struck us as an honest witness, and less defensive than Mr Brooks. He gave straightforward and damaging answers to questions about statements made to the experts concerning Mrs Daoud's use of walking aids and the distance she could walk.
- The defence called an array of other witnesses, both of fact and in relation to character. They included members of the extended family: Mrs Deborah Tynan, who is the sister of the second defendant's husband; Mrs Ohanes Azer, who is Mrs Daoud's sister (and who accompanied her on the visit to Sainsbury's shown on the DVDs). There were also a number of witnesses who know Mrs Daoud and the family through the church: Father Youhanna Habib, who is the parish priest at the St Mary and St Abraam Coptic Orthodox Church in Hove; Reverend Wagih Abdelmassih, who is now at the London Arabic Evangelical Church but was formerly also pastor at the evangelical church in Hove and in that way became a friend of the Tadrous family; Mrs Christine Dalton, a pastoral worker at Bishop Hannington Church in Hove; Mrs Dina Musaad, a friend of the family through meeting them at an Arabic group meeting at church; Mr Mamdoh Mansour, an elder at the Arabic Evangelical Church in Hove who also became a good friend of the family. Other witnesses were Mrs Rachel Benedict, a close friend of the second defendant; Mrs Kathryn Sampson, a care worker who has attended Mrs Daoud since 2008 and looks after her for a short time every weekday morning; Ms Cristina Montesserin Ouviano, a care rehabilitation support worker who has visited Mrs Daoud and carried out assessments on her; and Mrs Daoud's general practitioner, Dr Susan Mills, who gave evidence about Mrs Daoud's medical history. All the witnesses showed themselves to be very sympathetic to Mrs Daoud and her family but we have no reason to doubt that they were trying to assist the court in the evidence they gave.
- In addition to that oral testimony, there was unchallenged character evidence by way of affidavit from a number of witnesses. We have taken that evidence into account but do not need to make specific reference to it.
The expert witnesses
- Mr Maurice-Williams, Mr Staniforth, Dr Gross and Mr Barwood were called by the insurers as witnesses of fact, to verify the correctness of factual matters set out in their reports and/or because the defence wanted to put additional questions to them.
- Mr Maurice-Williams was a measured, professional witness whose care over factual matters is illustrated by the fact that he dictated the first part of his report at the examination in the presence of Mrs Daoud and members of her family. In the event, the factual matters set out in his report are not in dispute. But we have no hesitation in placing weight in addition on his reaction to the surveillance DVDs and the contrast between Mrs Daoud's appearance in those DVDs and her presentation at his examination of her. We deal with that below, in the section concerning the falsity of the statements and representations made.
- Mr Staniforth was likewise a straightforward, professional witness. His area of expertise was not central to Mrs Daoud's litigation, but it is notable that he adopted a systematic format and took care to identify all relevant parts of the body and to record in detail any complaint relating to them; and his attention to detail is further illustrated by the fact that he volunteered to the court that he had identified one error in his report (on a point immaterial to these proceedings). He is the kind of person who is likely to have recorded accurately what he was told. Further, in his case too we have no hesitation in placing weight on his reaction to the surveillance DVDs and the contrast between Mrs Daoud's appearance in those DVDs and her presentation at his examination of her.
- Dr Gross was a visibly angry witness who felt strongly that in an earlier case, which formed the basis of Mr Hogarth's cross-examination of him before us, his integrity had been unfairly criticised in circumstances where he had been given no proper opportunity, either in advance or at the time, to respond to the matters that led to the criticism of him. The case in question was Williams v Jervis [2008] EWHC 2346 (QB), at [98]-[119]. The judge found the claimant's various criticisms of Dr Gross to be justified; he referred to clear indications of a lack of thoroughness and a failure to spend adequate time in properly analysing the case; he said that Dr Gross had unfortunately lost the focus of an expert witness and had sought to argue a case; and he was driven to the conclusion that he was unable to place reliance on Dr Gross's evidence. Although Dr Gross saw his appearance as a witness before us as an opportunity – and his first opportunity – to redress the wrong he believed he had suffered on that occasion, it would be neither appropriate nor possible for us to allow those issues in Williams v Jervis to be reventilated.
- There are additional reasons for approaching the evidence of Dr Gross with a measure of caution. He clearly feels strongly about the issue of fraud perpetrated by claimants, and even before us there were times when he came close to taking up the position of an advocate. Further, whilst saying that he had no personal recollection of his examination of Mrs Daoud, he did claim to remember her standing up as described in para 83 of his report (quoted above). Given that he carries out a very large number of medico-legal examinations and he has no general recollection of this one, we have real difficulty in accepting that he can remember this one aspect of the consultation. Another point of concern is that in a supplementary report dated 16 September 2008, after the surveillance DVDs had been shown to him, he summarised key parts of his first report inaccurately, stating that Mrs Daoud had "needed to use a wheelchair" and had been "wheelchair dependent" in the consultation: that went further than was recorded in the first report.
- Taking all those matters into account, we are nonetheless of the view both that Dr Gross was an honest witness and that substantial reliance can be placed on the contents of his first report. We reject the suggestion that he was a "defendant's friend" whose work was biased against personal injury claimants. In any event, that suggestion could not conceivably provide an explanation for what is alleged against him in this case, namely that he misrepresented Mrs Daoud's condition in a manner that would, in the context of her personal injury claim, have been favourable to her.
- As to Mr Barwood, the cross-examination of him brought out that he had no real memory of the assessment he carried out or of the precise discussion that took place during it, but he relied on the contents of the notes which he made at the time and which he used in compiling his report. He was a witness whose evidence can be accepted in full, but the focus has to be on his notes and report rather than on anything he said orally.
- Falling into a different category was the testimony of Dr Bach, a consultant neuropsychologist called on behalf of the defence, and Dr Plowman, from whom we heard briefly in response to Dr Bach's evidence. We received Dr Bach's evidence de bene esse, since there was an issue as to whether she had relevant expertise. She gave evidence about Mrs Daoud's cognitive and intellectual functioning, but made clear that her expertise was limited to the area of neuropsychology and that she was not an expert on mobility. In our view she was qualified to give expert evidence within the area she herself defined, but her evidence within that area is of limited relevance to the case and she did not impress us as a witness. Her report contained a number of errors and deficiencies in its analysis of previous expert reports; and she did not display as thorough a knowledge of the case as we would have expected. A particular area of disagreement between her and Dr Plowman concerned the significance of certain "tests of effort" undertaken by Mrs Daoud. We found that debate inconclusive and unhelpful.
The wider case against the defendants
- We have indicated above that, although the pleaded allegations in contempt focus on the issue of mobility, the insurers advanced the wider case that the whole personal injury claim was grossly exaggerated and that even Mrs Daoud's neurological and psychological problems were no more than minimal. We reject that wider case. We are satisfied that Mrs Daoud's claim was at root a genuine one. The medical experts agreed that she suffered a severe brain injury; and whilst the long term effects of such an injury can vary greatly, the general tenor of opinion was that she would be expected to be left with a degree of cognitive and psychological disability. There was a wealth of evidence from the defendants themselves (albeit we treat their evidence with caution) and from the supporting defence witnesses that such disability was considerable and has remained so despite the family's efforts to promote her rehabilitation. It is clear from the witness evidence that Mrs Daoud has been a very different woman since the accident. What is seen on the DVDs comes nowhere near establishing the contrary.
- One of the points relied on in support of the insurers' wider case was the settlement of Mrs Daoud's claim for £40,000 (at 50 per cent liability), which was the amount of the insurers' earlier Part 36 offer and was a tiny proportion of the original claim. Mrs Brooks was cross-examined in some detail about that. She said that even after disclosure of the DVDs counsel had advised that Mrs Daoud would beat the Part 36 offer. But the solicitor handling the case left the firm in May 2010 and his replacement did not start work on the case until just over a month before the date in October 2010 when the case was listed for trial. Then, just three weeks or so before the trial, the family were informed that their barrister had withdrawn from the case for personal and confidential reasons. It was not possible to get a replacement barrister willing at the last minute to take the case through to trial on the basis of a conditional fee agreement. The solicitor then advised the family to accept the Part 36 offer and threatened to apply to the court to be taken off the record if they declined to do so. It was only because of this late pressure and change of advice that the family had no option but to agree to the settlement.
- An affidavit from counsel who acted originally for Mrs Daoud was obtained by the defence in the course of the hearing before us and was put in evidence without objection or any application to cross-examine. In that affidavit, counsel explains that he withdrew from the case just before the trial for professional and personal reasons that were entirely unconnected with the case. He states in terms that the reason why he was unable to continue acting "was … not connected with the prospects of success of the case". His affidavit therefore provides independent support for Mrs Brooks's evidence on this subject. In the light of the affidavit, we are not prepared to draw any adverse inference from the late settlement of the claim for so small a sum or to treat that sum as a full reflection of the extent of Mrs Daoud's overall disability. It seems to us that the family were placed in a very difficult position indeed as a result of counsel's unfortunate late withdrawal from the case.
THE STATEMENTS AND REPRESENTATIONS MADE
- In this section we deal first with the specific statements and representations alleged to have been made to the experts, again taking the relevant examinations and assessments in chronological order.
- Mr Maurice-Williams. It is not in dispute that the representations alleged were made, i.e. that Mrs Daoud attended the examination itself in a wheelchair and demonstrated that she was only able to walk slowly with the help of an assistant. Mrs Brooks's evidence was that the family did not take a wheelchair to the hospital but her mother saw one in a corridor in the hospital and, being exhausted and anxious, asked to use it. There was no evidence to contradict that account: Mr Maurice-Williams did not see Mrs Daoud come into the hospital. Even on that basis, however, the presentation of Mrs Daoud in a wheelchair, coupled with the demonstration she gave of her walking ability and in the absence of any explanation of the circumstances in which she came to be in a wheelchair and of any suggestion that she could walk more freely in other situations, amounted to a clear representation of very limited mobility. We come back to that when considering the allegations of falsity.
- Mr Violaris. The defendants do not accept that Mr Violaris was told that Mrs Daoud could only walk with help or that she was using a wheelchair, though it is right to say that Mr Tadrous's evidence on this was a little confused, amounting more to a lack of recollection of what was said to Mr Violaris than to an outright denial of what is contained in Mr Violaris's report. Mr Violaris himself swore an affidavit confirming the accuracy of his report. This was admitted under the provisions of the Civil Evidence Act, since he was abroad at the time of the hearing. Mr Hogarth made a number of points going to the weight to be attached to the doctor's evidence: the report contains a clear mistake about Mrs Daoud's language skills; there was no mention of a wheelchair in the doctor's notes; the report itself was not produced until some 3½ months after the examination; and Mr Violaris had not been informed of, or asked to comment on, the defence case concerning his evidence. Despite those points, however, we accept the correctness of the relevant part of Mr Violaris's report and think it right to attach weight to it. The consistency between what Mr Violaris records and what was told to other experts is striking; and the reference to a wheelchair would have been a very strange thing for him to include if it had not been said to him.
- Mr Staniforth. The statements and representations alleged are formally admitted, yet the defence case is to the effect that what the doctor was told or shown in relation to Mrs Daoud was that (i) she was able to walk outdoor with the physical and emotional support of her family, but (ii) when walking by herself without that support she used a rollator. That case was not assisted by the evidence of Mr Tadrous, who was evasive and fell back on an inability to remember when questioned about what was said to the doctor. We are satisfied not only that the statements and representations were made, but that they are not to be read in the way suggested by the defence. What was said about the use of a rollator was put forward as representing Mrs Daoud's general mobility, not as applying only to situations where she was walking by herself.
- Ms Makda. The representations alleged are admitted. When Mrs Brooks was questioned about these and other passages in Ms Makda's report, the general tenor of her responses was that this was genuine behaviour on Mrs Daoud's part on the day and that nothing was said or done to misrepresent her mobility.
- Mr Johnson. The statements and representations alleged are admitted, though Mrs Brooks said in evidence that she could not remember whether Mrs Daoud used her frame for support or how much of the information came from Mrs Daoud and how much from Mrs Brooks. She took issue with Mr Johnson's description of Mrs Daoud as being "unable" to go into the garden, saying that the problem was not one of physical inability but of difficulty in finding the key; but this was a peripheral point, not forming part of the relevant count.
- Dr Gross. Dr Gross's references to Mrs Daoud's use of a wheelchair are denied by the defendants. Mrs Brooks said in evidence that they took a walking aid (she thought it was the rollator) with them on the occasion of Mrs Daoud's attendance at the examination; they did not take a wheelchair. In her affidavit Mrs Brooks recalled an issue with lack of seating in Dr Gross's examination room, and she put forward the suggestion that Mrs Daoud may have sat in a wheelchair during the appointment because this was in the room already and was offered to her as a seat. That explanation was categorically and cogently rejected by Dr Gross, whose evidence on the point we accept as plainly correct. Apart from that, neither Mrs Brooks nor Mr Tadrous was able to offer any explanation for what appears in Dr Gross's report beyond that of simple mistake. But we reject the suggestion of mistake, both on the specific point about Mrs Daoud being in a wheelchair throughout and in relation to his being told that Mrs Daoud had been using a wheelchair but that recently a Zimmer frame had been introduced. We refer to our general comments above on Dr Gross as a witness; we note the broad consistency between Dr Gross's report and what is recorded by other experts on this subject; and we can see no reason why Dr Gross, who said in evidence that the taking of the history is a fundamental part of the process of assessment, should have made such an error in relation to this part of the information provided.
- Dr Chalmers. The part of Dr Chalmers's report containing the statements and representations alleged was the subject, in effect, of a formal admission, as a reasonable description of Mrs Daoud's state based in part on her own account, in part on what she said which was relayed to the doctor, and in part on what Mr Brooks and Mr Tadrous observed. Yet in her oral evidence Mrs Brooks denied saying that Mrs Daoud could walk perhaps 100 yards on the flat or that Mrs Daoud required the use of a wheelchair; and she drew a distinction between, on the one hand, Mrs Daoud's ability to walk without a rollator or Zimmer when someone was with her and, on the other hand, the position when Mrs Daoud was by herself, when she would use an aid and would not walk far. For his part, Mr Tadrous was evasive when questioned about the same part of the report and fell back on the point that the issue of mobility was a matter between the doctor and the patient. We are satisfied that the statements and representations were made and that they were put forward as descriptive of Mrs Daoud's general mobility.
- Mr Barwood. The passage of Mr Barwood's report containing the alleged statements and representations is said in the formal admissions to have been the expert's own observation: it is said that what was shown was a fair presentation of normal days and that the defendants did not tell him that a wheelchair was being used at that stage (indeed, they did not have a wheelchair at that stage). In her oral evidence, Mrs Brooks said she could not remember what she told Mr Barwood or the details of his visit, but she confirmed that they did not have a wheelchair at that time in the family home and she drew the same distinction as before between, on the one hand, Mrs Daoud's ability to walk outside without a walking aid if she had the support of her family, and, on the other hand, Mrs Daoud's use of a walking aid when walking by herself. Mr Barwood, for his part, relied on his notes, saying that if a point was in his notes it had come up in discussion.
- As to that, we observe that the notes say "Wheelchair – try not to use", whereas the report states "There is a wheelchair for outdoor use if required", and that Mr Barwood did a tour of the house but did not note the presence of a wheelchair there. The absence of a wheelchair in the house fits with the family's evidence that, although Mrs Daoud came home with one from the rehabilitation centre in December 2005, it had not been used much and had been returned by the time of Sherihan's wedding in July 2007. On the basis of the notes and the report, however, we take the view that the suggestion must have been made to Mr Barwood that a wheelchair was available for use by Mrs Daoud if required, albeit she tried not to use it. This fits with the general impression of limited mobility conveyed to Mr Barwood. We therefore find that the statements and representations alleged were made and that they were put forward as descriptive of Mrs Daoud's general mobility.
- Dr Bowskill. The representation alleged is admitted. Mrs Brooks said in evidence that they took a walking aid to the appointment but she could not remember whether they took it into the examination room. Mr Hogarth submitted that since the reference in the report was to an "aide", not an "aid", it should be understood as a description of Mrs Daoud coming in on the arm of someone, not as a reference to a physical aid. We reject that submission. The only other person recorded as having been present at the examination was Mrs Brooks, to whom Dr Bowskill made a number of references in his report. If he had meant that Mrs Daoud walked into the room supported by Mrs Brooks, he would have said so; whereas to describe that situation as Mrs Daoud walking into the room "with an aide" would have been a very strange use of language on his part. We are satisfied that Mrs Daoud walked into the room with a walking aid.
- That deals with the statements and representations made to the various experts. So far as concerns the statements made in the defendants' own witness statements, no elaboration is required. It is not in dispute that the witness statements were made, and the statements speak for themselves.
FALSITY OF THE STATEMENTS AND REPRESENTATIONS
- The question whether the relevant statements and representations have been proved to be false is most conveniently approached in the first instance by looking at the generality of the impression conveyed by them to the experts. That picture was one of a lady with very limited mobility, who was heavily dependent on walking aids and even then could walk only slowly and for short distances. Mrs Daoud attended the consultations with Mr Maurice-Williams and Dr Gross in a wheelchair. Mr Violaris was told that she was mainly using a wheelchair. Dr Gross was told that she had been using a wheelchair though recently a Zimmer frame had been introduced. Dr Chalmers was told that she was able to walk with a rollator perhaps 100 yards on the flat but she required the use of a wheelchair for longer distances. Mr Barwood was told that she used a rollator outside but that there was a wheelchair for outdoor use if required. Mr Maurice-Williams, Mr Violaris, Mr Staniforth, Ms Makda, Mr Johnson, Mr Barwood and Dr Bowskill all had it told or demonstrated to them that she was able to walk only slowly, whether with the assistance of a Zimmer or rollator or by holding onto furniture or with the help of another person. Ms Makda and Dr Chalmers had it told or demonstrated to them that she had difficulty climbing steps or stairs. Those points are drawn from the specific passages forming the basis of the various counts. They are consonant with what appears elsewhere in the reports.
- That picture is in sharp contrast with the Mrs Daoud seen on the surveillance DVDs. Whilst we do not accept Mr Featherby's characterisation of her on the DVDs as having for practical purposes unlimited mobility, she is undoubtedly very much more mobile than had been presented to the experts. She does not use a walking aid of any kind. She sometimes takes a person's arm, but she is also seen walking by herself for substantial periods of time. Her walking is generally on the slow side but it is plainly faster and more confident than the very slow walking to which the expert reports refer. She is seen to walk distances far in excess of those represented to the experts, being on her feet for long periods (up to three hours or more). She walks with shopping bags in her hands. Not only is she able to walk up and down steps with relative ease, but she is actually seen to trot or run up them.
- Having regard to the evidence we heard from the various defence witnesses, we are satisfied that what is seen on the DVDs is reasonably representative of Mrs Daoud's general mobility. The degree of mobility shown at her elder daughter's wedding, in particular her speed of movement up and down the steps, occasioned several expressions of surprise and may have been exceptional; but whatever the explanation for it (it was attributed by the defendants to the importance and excitement of the day, coupled with the effect of painkillers and alcohol), it shows what she was capable of when in the right mood.
- There was some evidence that Mrs Daoud had occasionally used a wheelchair at a supermarket, but not since early 2006. We were told that the wheelchair taken home with her from the rehabilitation centre in December 2005 was not used to any substantial extent and was returned to the centre in or before spring 2007. There was little evidence of her using a Zimmer frame or rollator or any other form of walking aid. A number of witnesses gave evidence that they had never or hardly ever her seen her walking outside the house without somebody holding her hand or offering her physical support; but this evidence was either limited in nature (relating, for example, to her occasional appearances in church) or was difficult to reconcile with what is seen on the DVDs. Various descriptions were given of her normal walking speed and style, but this is best judged from the DVDs themselves, which were not said to give a false impression in that respect. It was emphasised that when she is seen on the DVDs she is almost always in the company of close family or friends, and that someone watches from the window even when she goes out to post a letter. There was evidence that she does not otherwise go out on her own. Those various points show the need for caution when assessing the significance of what is seen on the DVDs but they do not cast doubt on the reliability of the DVDs as representative of her general mobility.
- The DVDs all relate, of course, to the position outdoors and do not show one what happens within Mrs Daoud's house. As to that, there was a body of evidence that she moves around relatively little within the house and that when she does so she moves slowly and holds on to the furniture or to a person's arm, and also that she goes slowly and holds on to the rails when going up and down the stairs (though again there was very little said about the use of walking aids such as the Zimmer or the rollator). That evidence came from visitors ranging from the priests, Father Habib and Reverend Abdelmassih, to the care worker, Mrs Sampson. In the light of it, we accept that that is how Mrs Daoud behaves in practice within the house. It may be that the confined space and the narrowness of the staircase encourage her to act in this way. In any event, what happens in practice within the house does not undermine the evidence of general mobility given by the DVDs.
- Mr Maurice-Williams, in his evidence to the court, described Mrs Daoud as quite different on the DVDs from when he examined her (and although the period of surveillance started some months after Mr Maurice-Williams's examination, there is nothing in the evidence to suggest that such an improvement in Mrs Daoud's condition might have occurred naturally during the intervening period). Mr Staniforth said that the DVD of Mrs Daoud at her elder daughter's wedding did not fit with his understanding of what he was told when he examined her. Dr Gross gave evidence that he would not have expected the contrast between Mrs Daoud's presentation to him and what was seen on the DVDs: it was "impossible, beyond reason". None of that is in the least bit surprising. It simply confirms what is in any event an obvious conclusion to be drawn from a comparison between the expert reports and the DVDs.
- The explanation put forward by the defendants for the contrast between Mrs Daoud's presentation to the experts and what is seen on the DVDs is that she worked herself up into a state of anxiety and stress before an expert examination or assessment, resulting in the presentation that the experts saw: that was a genuine presentation, albeit different from the way she behaved when in a happy and relaxed mood in the company of close family or friends. For example, Mrs Brooks said in her affidavit (para 33):
"… On those occasions where my mother has been feeling highly stressed, pressured or nervous, and the only real instances I can think of of her being upset to this degree are when attending medical appointments, she will insist on using one of her walking aides [sic] …."
- There are a number of difficulties about that explanation. First, even if the explanation is true, the fact remains that a false impression was conveyed to the experts by the statements and representations made. There was no suggestion that they applied only to an exceptional situation arising out of the very fact that an examination or assessment was being carried out, or that Mrs Daoud's general mobility was very different and in line with that seen on the DVDs. That a false impression was being conveyed would have been obvious to whichever member or members of her family accompanied Mrs Daoud at the examination or assessment.
- Secondly, if Mrs Daoud was getting herself into such a state as to behave genuinely in an exceptional way on these occasions, the overwhelming likelihood is that the point would have been mentioned to at least one of the experts concerned. Mrs Brooks was ready to inform Ms Makda that Mrs Daoud was having a good day and to tell Dr Plowman that Mrs Daoud's presentation was better than usual. If what was being seen by the experts was Mrs Daoud having a genuinely bad day, with worse mobility than usual, Mrs Brooks could have been expected to inform them of that fact. Yet the first time this explanation was offered to an expert was during an examination by Dr Johnson after disclosure of the surveillance DVDs (see his second report, dated 3 September 2009, para 6.3).
- Thirdly, whilst there is some support for the contention that Mrs Daoud got herself into a state on these occasions, we cannot accept that it was so great or had such a radical effect on her as claimed. A degree of factual support comes from the evidence of Mr Brooks, Sherihan's husband, who described an occasion in April 2011 when he took Mrs Daoud to his own chiropractor in Guildford, where he witnessed at first hand how nervous and upset she got; and from the fact that there are references in the various expert reports to anxiety and a lack of co-operation or communicativeness on the part of Mrs Daoud. A degree of expert support comes from the evidence of Dr Bach, who gave it as her belief on the balance of probabilities that Mrs Daoud's mood has had an effect on her functional as well as her cognitive abilities (though Dr Bach made clear that she is not an expert in the field of mobility). Despite all that, however, we find it difficult to believe that Mrs Daoud's mobility was transformed by her state of anxiety from the position seen on the DVDs to that presented to the experts.
- The DVD of the visit to Dr Gill is instructive on this issue. Throughout the first part of the day, Mrs Daoud appeared to have good mobility. It was only at a very late stage, just before going into the consulting rooms, that the Zimmer frame was fetched for her from the car. She then used it to go into and out of the building, walking slowly and giving the impression of severely impaired mobility. We were told by the family that once inside the building she left the Zimmer at the reception and held her daughter's hand to go in to see the doctor. If that is right, it makes the supposed need for the Zimmer immediately before and after the visit even more puzzling. In any event, however, taking account of the evidence as a whole, we do not accept that what is seen on the DVD is explained by Mrs Daoud getting into a last-minute panic about the visit and freezing up. There appears to us to have been at least some element of putting on a show of limited mobility for the visit to the doctor.
- Fourthly, what the experts were told about Mrs Daoud's mobility (as opposed to what they had demonstrated to them by Mrs Daoud on the day) was plainly intended to be of general application, and there was nothing in it to suggest that Mrs Daoud's behaviour on the day was different from the norm.
- The conclusion to which we have come in the light of those various considerations is that the relevant statements and representations made to the experts were false in so far as they related to Mrs Daoud's general mobility. That applies to all the specific statements and representations pleaded (see [72] above), subject to the following qualifications:
i) As regards Mr Violaris, it has not been proved that Mrs Daoud "did not lack confidence with walking". On the contrary, the evidence establishes a general lack of confidence on her part.
ii) As regards Mr Staniforth, it has not been proved that Mrs Daoud "did not have pain almost everywhere". We have not gone into the detail of the evidence concerning pain, but it is clear that Mrs Daoud made numerous complaints of pain (and whilst "almost everywhere" may have involved a degree of exaggeration, it was not a material one). The complaints derive some support from the medical evidence, including the issue of repeat prescriptions for painkillers. The DVD evidence (including the occasion at the hairdresser's when the second defendant sat on Mrs Daoud's lap) is in our view plainly insufficient to disprove the existence of pain.
iii) As regards Mr Johnson, we have accepted that Mrs Daoud would "coast walk" around the house, but the falsity of the statement about coast walking lay in the suggestion that this was the limit of her mobility.
iv) A similar point applies to what was demonstrated to Mr Barwood with respect to Mrs Daoud holding onto the furniture when walking around the house.
v) As regards Dr Gross, we should make clear that our conclusion is limited to the issue of mobility. In so far as the statement or representation that Mrs Daoud "required help for more or less every activity" relates to other activities, such as cooking or making tea or doing up her bra, all of which were considered in evidence, we are not satisfied that it was false.
- Some of the considerations to which we have referred in reaching our conclusion on the falsity of the statements and representations also have a direct bearing on the issues of honesty and knowledge to which we will come in a moment.
- A separate matter which we need to consider here concerns the counts relating to the defendants' witness statements: were the specific statements relied on by the insurers false?
- As to Mrs Brooks, the relevant statements are highlighted at [54] above. The statements in paragraphs 34 and 50 of the witness statement relate to the pain suffered by Mrs Daoud. In our view, as already indicated, it has not been proved that Mrs Daoud did not suffer such pain. Paragraph 60 states that "we make sure that she walks every day, even if it just for 10 minutes" and that when she does go out for a walk "we must make sure that it is a quiet time of day, as she gets disturbed by lots of people, by traffic, etc.". We see nothing wrong with the first part of that statement, which contains no misrepresentation as to Mrs Daoud's mobility. The second part of the statement should perhaps have been qualified, since the occasion of the wedding and the trips into town show an ability on the part of Mrs Daoud to cope with people and even traffic in the right circumstances; but we do not accept that this is of sufficient materiality to found a case in contempt. Paragraph 62 refers to Mrs Daoud sometimes forgetting about and tripping over the step down to the bathroom. The evidence does not begin to establish that that statement was false.
- Accordingly, we conclude that there is nothing in Mrs Brooks's witness statement that satisfies the second condition for a finding in contempt.
- As to Mrs Tynan, the relevant statements are highlighted at [55] above. Paragraph 36 of her witness statement states that Mrs Daoud "still only really feels safe going out with dad". The evidence suggests that she also feels safe going out with other close members of the family; but that does not turn this into a material misrepresentation capable of founding a case in contempt. Paragraph 44 states that "her mobility is very poor" and that "she is in a lot of pain and she is weak down her left side". Again we are not persuaded that the statement about Mrs Daoud's pain is false. Nor are we satisfied that Mrs Tynan misrepresented the position when referring to Mrs Daoud's weakness down her left side. Although the DVDs show Mrs Daoud carrying shopping bags and lifting a glass in her left hand, they do not prove normal functioning down her left side; and there was evidence, for example about her inability to do up her own bra, which supports the view that she does not have normal functioning. More problematic is the statement that mobility is very poor, the effect of which is reinforced by the statement in paragraph 45 that "we do try and make her move and walk". There is plainly a significant degree of overstatement here. It is, however, of a very general nature and we do not consider that such statements, taken by themselves, could sensibly form the basis of a finding of contempt. Yet there is nothing to add to them, since Mrs Tynan was not present at any of the expert examinations or assessments; Mr Featherby made clear in his closing submissions that counts 18-20 were not intended to allege a wider conspiracy to misrepresent Mr Daoud's condition but depended on proof of the specific counts in Part A to the schedule; and there would in any event be no adequate basis for a finding that Mrs Tynan was party to any such wider conspiracy.
- We therefore conclude that there is nothing in Mrs Tynan's witness statement that satisfies the second condition for a finding of contempt.
- As to Mr Tadrous, the relevant statements are highlighted at [56] above. They are to the effect that Mrs Daoud cannot walk very far (paragraphs 29 and 32), she is weak down her left side and cannot move her left arm properly (paragraphs 29 and 32), she finds it very difficult going up and down stairs (paragraph 29), she cannot really carry out even the simplest of normal, everyday tasks (paragraph 30), and she still suffers a lot of pain (paragraph 32). So far as concerns Mrs Daoud's left side, we repeat that it has not been proved that she has normal functioning on that side; and we are not persuaded that the statements are false. Similarly, as also covered above, it has not been proved that Mrs Daoud did not suffer pain. The statement concerning her ability to carry out normal, everyday tasks should perhaps have been qualified (though a degree of qualification was implicit in the use of "really"), but there was ample evidence that she could not carry out such tasks without assistance and support, and we do not think that this was a materially false representation sufficient to found a case in contempt. So far as concerns mobility, we have accepted that Mrs Daoud was limited in practice in her movements within the house (which was the context of everything said in paragraph 29). More problematic is the statement in paragraph 32 that "she cannot walk very far", which is difficult to reconcile with what is seen on the DVDs. We have come to the conclusion, however, that the statement is too subjective and imprecise to found a case in contempt. Mr Featherby submitted that in the context of what the experts had been told it was clear that Mr Tadrous meant that Mrs Daoud could walk only a few paces. But that is not what Mr Tadrous said and we not think it right, in the context of contempt proceedings, to read such a meaning into what he said.
- Accordingly, we conclude in relation to Mr Tadrous, too, that there is nothing in his witness statement that satisfies the second condition for a finding of contempt.
- It follows that the insurers' case based on their witness statements fails at this hurdle in respect of all three defendants. That has a particular significance for Mrs Tynan, since the entire case against her was based on her witness statement. In relation to her, therefore, the insurers' case in contempt must fail altogether and she drops out of the picture during our consideration of the remaining issues. In relation to Mrs Brooks and Mr Tadrous, our consideration of the remaining issues proceeds by reference only to the false statements and representations made to the experts and contained in their reports, as identified above.
INTERFERENCE WITH THE COURSE OF JUSTICE
- The insurers' case is that the false statements and representations were likely to interfere with the course of justice by reason of their effect on the level of damages to be awarded to Mrs Daoud, whether pursuant to a settlement (the policy of the law is to encourage settlement, with full and frank disclosure by the parties) or at trial. These falsehoods, if persisted in, would have been liable to influence the level of damages in several respects: general damages for pain, suffering and loss of amenity, and past and future damages for items such as care, aids and appliances, transport, accommodation, treatment and therapies. Mr Featherby gave some figures to illustrate the potential effect, but we need not dwell on the detail. It is sufficient that misrepresentations of this kind, if persisted in and not discovered in time, were likely to result in a significantly higher award of damages than Mrs Daoud was entitled to, and thereby to interfere with the course of justice. That such was their likely result is obvious.
DISHONESTY AND KNOWLEDGE
- We turn to consider whether it has been proved that Mrs Brooks and Mr Tadrous had no honest belief in the truth of the relevant statements and representations and that they knew of the likelihood that such statements and representations would interfere with the course of justice. Our conclusions on those issues follow to a large extent from our discussion of the falsity of the statements and representations themselves and from the comments we have made on Mrs Brooks and Mr Tadrous as witnesses.
- In our judgment, Mrs Brooks and Mr Tadrous must have known that the relevant statements and representations made at the examinations and assessment which they attended were false. The contrast between what was said or represented and the truth concerning Mrs Daoud's general mobility was too great to allow for the possibility of misunderstanding or mere oversight. Where statements were made, it is highly probable that they were made by Mrs Brooks if she was present, or by Mr Tadrous if he was present and Mrs Brooks was not present, rather than by Mrs Daoud. Where they did not themselves make the statements, they allowed the statements and representations to be made without correction. It is unnecessary, however, to decide whether they were under a duty to correct them. That is because we are satisfied, from the circumstances as a whole, that the presentation of Mrs Daoud's mobility to the experts, including the statements and representations made in that regard, was a deliberate step in which the members of the family present all connived: the picture of very limited mobility was presented with the agreement of them all. We do not believe that so consistently misleading an impression would otherwise have been given.
- There was no great degree of sophistication in all of this. The false statements made to the experts were not part of any master plan to put forward a fraudulent claim. We have already made clear our rejection of the contention that the whole claim was grossly exaggerated. In relation to mobility, we have rejected the contention that materially false statements were made in the defendants' witness statements. We note that the particulars of claim referred only to "significant mobility problems" (though they did, of course, attach medical reports in which false statements and representations were made). We also note that what was said about Mrs Daoud's mobility at an early stage was couched in relatively modest terms: we refer in particular to the report of Mr Wilson following his assessment in September 2006 (see [18] above), but there was also some other early medical material which we have not thought it necessary to set out.
- Nevertheless we are left in no doubt that a deliberately false picture was presented to the experts upon whose reports the insurers' case is based. How this came about is not entirely clear. Mrs Daoud's anxiety about seeing the experts may well have contributed to her use of a wheelchair or walking aid on these occasions and to the limited mobility she displayed. If so, her daughter and husband built on this and connived in the presentation of it as typical of her general mobility.
- We are satisfied that, despite their evidence to the contrary, neither Mrs Brooks nor Mr Tadrous can have had an honest belief in the truth of the relevant statements and representations. In reaching that conclusion we have of course taken into account their good character and all the positive things said about them by the defence witnesses.
- We are also satisfied that Mrs Brooks and Mr Tadrous must have known of the likelihood that the false statements and representations, if persisted in, would interfere with the course of justice. There was no master plan to put forward a fraudulent claim but both of them appreciated that the greater the degree of physical disability that Mrs Daoud was found to have, the greater would be the likely award of damages.
- A clue to the particular motivation for their conduct may lie in a passage in Mr Tadrous's first witness statement on which he was cross-examined:
"The ideal for the family would be for Thereza and me to move nearer to Sheri in Guildford and to bring the family back together again. This would also help Meri in travelling to, and working in, London. Ideally, I would like to be able to retire and look after my wife 24 hours a day, which would be easier for everyone and I believe that she would improve more quickly. However, as I have said, I cannot leave my job because we need the money."
- In relation to Mrs Brooks there is one further matter that we need to consider, which is the series of counts against her based on the fact that the particulars of claim had medical reports attached to them which contained false statements and representations. We have dealt previously with the falsity of the relevant statements and representations (in the reports of Mr Maurice-Williams, Mr Violaris, Mr Staniforth, Mr Johnson and Dr Chalmers) and the likelihood of their interfering with the course of justice. What we have said in the present section about Mrs Brooks's lack of an honest belief in the truth of the statements and representations made at examinations and assessments which she attended, and about her knowledge of the likelihood that they would interfere with the course of justice, is equally applicable to her state of mind when, as Mrs Daoud's litigation friend, she authorised the solicitor to submit the medical reports with the particulars of claim, signed with a statement of truth. We have no doubt that she had read the reports, understood the importance of correcting material errors in them and appreciated the errors they contained in relation to Mrs Daoud's general mobility.
- It seems to us, however, that the counts relating to the submission of the medical reports with the particulars of claim are of much less significance than those relating to what happened at the examinations and assessments themselves. At the heart of the contempt of court was the conveying of a deliberately false impression to the experts in the first place, rather than the subsequent reliance on reports reflecting that false impression.
CONCLUSIONS
- For the reasons we have given at length, we find Mrs Brooks and Mr Tadrous in contempt of court, though we have found in their favour on some of the specific counts and we have also, very importantly, rejected the wider case advanced against them. It will be necessary to have a further hearing to decide on the appropriate sanction in relation to each of them.
- The case in contempt against Mrs Tynan is dismissed.
