Contempt after

Summers v Fairclough

David Melville QC

Sadie Crapper

INTRODUCTION

• Summers v Fairclough on contempt

• Thinking of contempt?

• New CPR Part 81

• Practice and strategy before the Court

- at the interloctory hearing

- for the final hearing

• Sentencing

The Supreme Court and contempt:

“Those who make false claims if caught should expect to

go to prison. There is no other way to deter those who may

be tempted to make such claims, and there is no other way

to improve the administration of justice.” (para 57)

“…it is open to the defendant (or its insurer) to seek to

bring contempt proceedings against the claimant, which are

likely to result in the imprisonment of the claimant if they

are successful...” (para 61)

Summers v Fairclough

Summers v Fairclough

The legacy of Summers:

“It was accepted in light of the observations made

in…Summers…that applications for committal for

contempt are an appropriate means of controlling,

punishing and as far as possible eliminating, dishonesty

in the conduct of civil proceedings.”

Moore-Bick LJ in Airbus Operations and QBE v Roberts

[2012] EWHC 3631 (Admin)

Thinking of contempt?

• Case prep = contempt prep

- lay the trap: background checks, Part 18

Requests, early signed Schedules of Loss

- good body of surveillance

- medical reports – good day/bad day:

with meds/without meds

- early low value offer/interim payment?

Thinking of contempt?

• State your case

- plead fraud and evidence in support

- consider a strike out application

- indicate to C in correspondence your

intention to pursue contempt

- look for findings at trial on the criminal

standard

Thinking of contempt?

• The problems caused by settlement

- no findings of fraud on which to base

grounds for contempt

- evidence not fully evolved

- judicial jaundice in absence of

uncontrovertible evidence:

RSA v Kosky [2013] EWHC 835 (QB)

Thinking of contempt?

• Getting around the settlement

‘problem’

- pick your case wisely

- focus your grounds to those which are

easily proven

- make your evidence as easy to digest

as possible (user-friendly surveillance DVD,

detailed chronology)

Making the application: CPR 81

• No change to existing law on committal

applications

• permission still required but simplified

according to court dealing with claim

(High Court: Judge dealing with proceedings;

County Court: single Judge of QBD; or the A-G)

• Proceedings by Part 8 claim form

NB – CPR, 81PD.17 and Quinn Insurance v Atlintas, 28/11/2013

Making the application: CPR 81

• Claim form must contain notice of

consequences – CPR 81PD.13(4)

• Personal service of claim form required

(or an order for substitute service or dispensing with

service)

• All evidence by way of affidavit

• Criminal standard of proof – beyond

reasonable doubt

Making the application: CPR 81

• Application must be supported by,

Detailed grounds

- Separate your background from the particulars

- Use a shotgun, not machine gun

and

An Affidavit setting out the facts and

exhibiting the documents relied upon

Making the application: CPR 81

• Mandatory content of the affidavit

- identify the false statement

- explain why it is false and why the

maker knew it was false at the time it

was made

- explain why contempt proceedings

would be appropriate in light of the

overriding objective

CPR, 81PD.6

Prep for interlocutory hearing

• Ensure that all procedural requirements

have been observed or make an

application under CPR, 81PD.17 for

waiver

• If R is unrepresented,

- make sure they are aware of availability of

funding from LSC

- ensure that interpreters are available

if required CPR, 81PD15.6

At the interlocutory hearing

Permission will only be granted if:

a) there is a strong case prima facie case in

respect of contempt; and

b) it is in the public interest committal proceedings

be brought (see Talal El Makdessi [2013] EWCA Civ

1540, para 79); and

c) such proceedings are proportionate and in

keeping with the overriding objective.

See Kirk v Walton [2008] EWHC 1780 (QB)

At the interlocutory hearing

• Directions (CPR, r.81.14(6))

Disclosure

Notice to admit facts

Defence statement (if not already available)

Further affidavits (exhibiting all documents)

Costs

Mr and Mrs Fari – the facts

• Slipping accident

• Pre-existing degeneration of right knee

• Care claims

• Surveillance of attendance at medical appointment

• Schedules of loss, witness statements, acting up

• Illiteracy of claimant

• Joint statement orthopaedic surgeons

• Strike out

Approaching the final committal

hearing

• Aim-to establish interference with due process, the

making of false statements without belief in their truth

Evaluation of prospects will involve,

• Consideration of the evidence. All the evidence relied upon

should have been served with the application see CPR 81.14

(1) (a) and (b) and see El Makdessi paragraph 50

• All the evidence needs to be on affidavit with the documents

exhibited thereto, see 81.14.1

• Drafting of affidavits see CPR 32.15.4 and CPR 32

Practice Direction. Personal knowledge and hearsay,

source of hearsay must be stated. Exhibits.

Evidence to be relied upon

• Surveillance evidence, affidavits of the

operatives exhibiting the films and logs

• Medical evidence of doctors eg both sides,

exhibiting their reports and any joint statements,

their hand written notes of examinations, type

• Other live oral evidence eg employee of

Haringey in Fari

• Documents to be relied upon, eg medical notes

and records, original trial bundles

Directions obtained and complied

with. The pinning down process

• Deadlines

– Detailed response to the detailed case

– Notices to admit and the response thereto

– Further information requests

– Evidence of the respondent to the application

– Things deemed to have happened-danger

– Disclosure

Strategy and tips for the hearing

• A view and site visit of surveillance area

• Proof required to the criminal standard see Re

Bramblevale Ltd 1970 1 Ch 128 and see Airbus

Operations Limited Ltd QBE Insurance v Adam Lee

Roberts 2012 EWHC 3631

• What do you have to prove - all the terms of the

indictment

• The public interest dimension-Barnes v Seabrook

• Evidence, proving the case. Cross examination

bundle

• The Press in and out of court. Skeleton arguments

• Concentration-on what?

Sentencing

• Statutory provisions: section 14 of the Contempt of Court

Act. One half to be served.

– The alternatives a suspended sentence, a fine

– Human Rights Act Article 8 - sentencing remarks to

take into account the HRA and the effect on the family

and on any children of the contemnor(s)

– Comparable range of sentences:• Sentencing Guidelines for fraud

• Banks on Sentencing

• Published reports on civil and criminal cases

• Lawtel/Westlaw

• Arlidge and Eady on Contempt 4th edition chapter 19, not

available online

Order of committal

• Form of order of committal has to set out what

the contemnor has done. Schedule. Costs seek

summary assessment

• Appeal, no need to seek permission

• Bail pending appeal

• Tipstaff

• Legal aid

Questions?

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