Exaggerated negligence claims

A claimant was recently held in contempt of court for grossly exaggerating a negligence claim against an NHS trust. Lucy Eastwood explains why.

In Calderdale Huddersfield NHS Foundation Trust v Sandip Singh Atwal [2018] EWHC 961 (QB) an NHS trust has successfully brought contempt proceedings against a DJ who grossly exaggerated the effect of his injuries in an attempt to claim over £800,000 in damages for clinical negligence. He faces a potential jail sentence.

Background

In June 2008 Sandip Singh Atwal attended the A&E department of Huddersfield Royal Infirmary with injuries to his hands and lip sustained after being attacked with a baseball bat. In 2011 Mr Atwal sued Calderdale and Huddersfield NHS Foundation trust for negligence, alleging a failure to treat his injuries appropriately. The trust admitted liability, offering Mr Atwal £30,000 to settle the case. Mr Atwal did not accept the offer and in 2014 made a claim for £837,109. The claim including substantial sums for future loss of earnings and care, on the basis that he was unable to work and was grossly incapacitated as a result of his injuries.

The trust were suspicious of Mr Atwal’s claimed disabilities, which were out of all proportion to his injuries and were inconsistent with entries in his contemporaneous medical records. In 2015 they commissioned covert video surveillance of Mr Atwal and investigated his social media postings. The footage showed him working as a courier, lifting heavy items without visible signs of discomfort and dancing in a music video for a single he had released. This led the trust to plead fraudulent exaggeration and to seek to strike out the whole of the special damages claim as an abuse of process. In 2016, shortly before the assessment of damages hearing, Mr Atwal accepted the trust’s offer of £30,000. However the whole £30,000 in compensation was swallowed up in paying the trust’s costs. In fact, Mr Atwal owed a further £5,000 to the trust after eight years of litigation.

Contempt proceedings

In November 2016 the trust made an application to bring committal proceedings against Mr Atwal for contempt of court, claiming that he had pursued a fraudulent claim for damages for clinical negligence by grossly exaggerating the continuing effect of his injuries. It alleged two forms of contempt:

First, interference, or attempted interference, with the due administration of justice by making false statements about his continuing disability to doctors and other experts who examined and interviewed him. That form of contempt required the trust to prove that:

• Mr Atwal deliberately set out to deceive the doctor or expert in question by falsely representing the extent of his continuing symptoms, either in the physical manner of his presentation or by lies told by the doctor or expert, or both;
• Mr Atwal must have intended thereby to interfere with the administration of justice; and
• the conduct complained of must have had a tendency to interfere with the administration of justice.

The second form of contempt alleged derived from CPR 32.14(1) which provides:

Proceedings for contempt of court may be brought against a 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.

CPR 22 provides that among the documents which must be verified by a statement of truth are a schedule of expenses and losses in a personal injury claim, and a witness statement. The contempt alleged in Mr Atwal’s case included examples of false statements in both such documents.

In relation to this form of contempt the trust had to prove that:

• the statement in question was false;
• the statement has, or if persisted in would be likely to have, interfered with the course of justice in some material respect;
• 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.

The standard of proof in respect of each of the elements of contempt was the criminal standard: proof beyond reasonable doubt (para 34 of the judgment).

The committal hearing was heard on 12 April 2018. Mr Atwal did not attend, with the court noting that he had “conspicuously failed and refused to engage in the proceedings ever since his dishonesty was uncovered”. The court separated the trust’s allegations into five broad categories of dishonesty:

• inability to work as a DJ;
• inability to work as a courier or otherwise;
• inability to lift items or help around the house;
• the requirement for care;
• the requirement for therapy for psychiatric problems.

The decision handed down on 27 April 2018 found 14 allegations of contempt relating to false statements by Mr Atwal to be proven. In each category of dishonesty Mr Justice Spencer found that the making of false statements:

… plainly had a tendency to interfere with the administration of justice by increasing the seriousness of the consequences of the injuries and, potentially, increasing the quantum of his damages. I am sure too that the defendant must have intended thereby to interfere with the administration of justice. There is no other explanation for making such false statements. Equally, and for the same reason, the false statements verified by a statement of truth in his witness statement and his schedule of loss and damage would be likely to interfere with the course of justice if persisted in. I am sure that the defendant had no honest belief in the truth of the statements he made and knew full well that these false statements were likely to interfere with the course of justice … (para 94)

The court adjourned consideration of sentence and any application to set aside the finding of contempt until 1 June 2018. Contempt of court is punishable by a fine, sequestration of assets or imprisonment. The maximum sentence for contempt is two years imprisonment (s. 14(1) Contempt of Court Act 1981).

Future implications

The cost of clinical negligence claims each year is increasing faster than NHS funding. Over the last ten years spending on the Clinical Negligence Scheme for Trusts has quadrupled from £0.4 billion in 2006-07 to £1.6 billion in 2016-17. At the same time the number of successful clinical negligence claims where damages were awarded has more than doubled, from 2,800 to 7,300. According to a report released by the National Audit Office in September 2017 the provision for clinical negligence in trusts is one of the fastest growing liabilities in government accounts at £60 billion, up from £51 billion last year. By 2020 the NHS will be paying out an estimated £3.2 billion in negligence claims annually, roughly the same amount of money it would need to fill 50,000 empty NHS posts.

Clinical negligence claims are placing extreme financial pressures on already squeezed trusts and directing funds away from patient services. As a result, trusts have become more robust in defending claims and more militant against those suspected of making false allegations, with Mr Atwal’s case being a prime example. The case is therefore likely to be closely monitored by other cash-strapped NHS trusts who are eager to challenge the ‘where there’s blame there’s a claim’ culture.

On the other hand, there is no doubt that the majority of claims brought against the NHS are genuine, and these claimants should be properly compensated. Following the handing down of the decision on 27 April 2018, NHS Resolution issued a statement on behalf of the trust acknowledging this point:

These proceedings should not deter genuine claimants as the Trust and NHS Resolution will continue to ensure that anyone who has suffered a genuine loss as a result of clinical negligence is properly compensated. This should, however, be seen as a demonstration of our commitment to combating fraud. The action highlights the very serious consequences of submitting dishonest and exaggerated claims.

Perhaps most importantly, the case against Mr Atwal is likely to serve as a warning to future claimants that persons grossly exaggerating claims will receive short shrift at court.

Lucy Eastwood is a pupil barrister at One Crown Office Row. This article first appeared in the set's UK Human Rights Blog.