Contempt after Summers v Fairclough. David Melville QC Sadie Crapper

Transcription

1 Contempt after Summers v Fairclough David Melville QC Sadie Crapper

2 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

3 Summers v Fairclough 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)

4 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)

5 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?

6 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

7 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)

8 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)

9 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

10 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

11 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

12 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

13 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

14 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)

15 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

16 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

17 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 (1) (a) and (b) and see El Makdessi paragraph 50 All the evidence needs to be on affidavit with the documents exhibited thereto, see Drafting of affidavits see CPR and CPR 32 Practice Direction. Personal knowledge and hearsay, source of hearsay must be stated. Exhibits.

18 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

19 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

20 Strategy and tips for the hearing A view and site visit of surveillance area Proof required to the criminal standard see Re Bramblevale Ltd 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?

21 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 4 th edition chapter 19, not available online

22 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

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