Clinical Negligence: Jail Sentence for False Statements

An NHS Trust brought proceedings for contempt against W following her clinical negligence action against them which had resulted in the parties settling liability as to 50:50 – North Bristol NHS Trust v Holly Rebecca White [2022] EWHC 1313 (QB): Ritchie J

Although the settlement covered causation of W’s cauda equina syndrome (CES)[1], it did not cover causation in relation to the extent of the symptoms claimed by W arising from CES.

Directions were given in relation to the evidence needed for the quantum claim. The Trust made interim payments totalling £45,000 and paid substantial legal costs. The schedule of loss (for which W would receive 50%) was between £4.2 and £4.3 million.

The Trust instructed surveillance agents who, between 11 October and 26 October, demonstrated that W visited a number of stores. She drove to and from them and got out of her car freely and easily. She walked around the stores without any apparent limp, slowness or disability. She bent down and sorted through clothes in the back of her car, bent down and looked at calendars in a store and walked with a dog on a lead carrying various items.

It was apparent to any objective observer of the videos that W’s complaints made to various medical and other experts and reproduced in the experts’ reports were false and misleading.

The Trust disclosed the videos. They offered that W withdraw the claim with no offer as to costs.

Instead, W’s lawyers served a witness statement about a month later setting out similar assertions to those already made and asserting that she had not been dishonest.

After another month W offered to the Trust to have the claim dismissed with no costs but the Trust refused and served a counter schedule pleading fundamental dishonesty and requantifying the claim.

Shortly afterwards W’s solicitors came off the record. Ultimately, W’s claim was struck out with an order to repay the £45,000 interim payments. The Trust had also paid £82,000 to her solicitors,  £57,000 to the Compensation Recovery Unit and about £170,000 to its own legal team.

The night before the contempt hearing, W agreed a basis of admissions resulting in the court finding that she dishonestly and intentionally made false statements to four experts who were reporting to the court on her physical condition.

Further, the court found that those statements were made knowing that they would interfere with the administration of justice by potentially increasing W’s entitlement to compensation arising from her increased clinical negligence claim. In the context of a claim for around £4.3 million, the false statements relating to W’s mobility had a value of at least £1 million gross on W’s own schedule and probably substantially higher than that.

Having reviewed the sentencing case law, Ritchie J said that when determining the appropriate sanction for contempt of court, he took into account that the purposes of the sanction were (i) punishment for W’s contempts; (ii) ensuring future compliance by W and all parties with the court’s requirements to be honest in all civil litigation; (iii) rehabilitation of the contemnor.

W had been dishonest, misled experts and continued in the dishonesty despite being shown surveillance evidence. She showed no understanding or remorse. Her dishonest actions undermined the administration of justice itself. The contempts were deliberate and for W’s own benefit.

In mitigation, W had no previous criminal convictions, she had a son aged nearly nine and was one of his carers. She had lost the residual value of her clinical negligence claim and been ordered to repay interim payments.

Furthermore, W had suffered a horrible physical challenge as a result of her degenerate spine which first became symptomatic when she was in her late teens in 2011. As a result of that genetic vulnerability her dreams of being a qualified nurse or midwife were destroyed as was the relationship with her son’s father.

There was strong personal mitigation but defrauding the NHS which was funded by the taxpayer was utterly unacceptable, and it was necessary to send the right message to those currently suing NHS trusts or those who would do so in the future.

The Court imposed an immediate sentence of six months’ imprisonment.

Case Cited in Judgment:

Walton v Kirk [2009] EWHC 703
South Wales Fire v Smith  [2011] EWHC 1749
Neild v Loveday [2011] EWHC 2324
Lane v Shah [2011] EWHC 2962
Homes for Harrogate v Fari [2013] EWHC 3623
Surface Systems Limited v Wykes [2014] EWHC 422
Amlin Insurance v Kapoor [2018] EWHC 632
Royal and Sun v Farhad [2015] EWHC 1092
Calderdale v Atwell [2018] EWHC 2537
Liverpool Victoria v Zaffar [2019] EWCA 392 Civ
Liverpool Victoria Insurance v Bashir [2012] EWHC 895 (Admin)
George Eliot Hospital NHS Trust v Elder [2019] EWHC 1813
National Highways Ltd v Heyatawin and others [2021] EWHC 3078 (QB
Calderdale NHS Trust v Metcalf [2021] EWHC 611
Hull NHS Trust v Colley [2022] EWHC 854
R v Petherick [2012] EWCA Crim 2214

[1] Cauda equina syndrome is a rare and severe type of spinal stenosis where all the nerves in the back become severely compressed.