Zenith Personal Injury Current Awareness

​Reckless contempt: Liverpool Victoria Insurance Company Limited v Khan and others [2018] EWHC 2581 (QB)

15 October 2018

Peter Yates

The need to avoid making dishonest and misleading assertions in the context of litigation is not, frankly, something which the High Court should need to reiterate. The judgment of Garnham J in Liverpool Victoria Insurance Company Ltd v Khan and others [2018] EWHC 2581 (QB) therefore makes for sobering reading. The interesting point of principle arising out of the judgment relates to the contempt alleged against the third Defendant, Dr Asef Zafar.

The underlying claim had concerned a road traffic accident in December 2011. The Claimant – a Mr Iqbal – instructed TKW solicitors in respect of his whiplash injuries. The first Defendant in the contempt proceedings – Kamar Khan – was the founder of TKW. Dr Zafar was the instructed medicolegal expert.

The Claimant was examined by Dr Zafar on 17th February 2012, and the “original report” was produced that day. The pain and stiffness to Mr Iqbal’s neck was said to have resolved after one week. Mr Iqbal was said to have been unhappy with this diagnosis, and subsequent correspondence sent to Dr Zafar by Mr Khan suggested a prognosis period of some six to eight months. On 24th February 2012, the “revised report” was produced by or on behalf of Dr Zafar. It carried the same date as the original report, and made no reference to it or to the reason for any amendments. It asserted that Mr Iqbal’s symptoms were ongoing and would resolve within six to eight months. LVI asserted that the revised report was riddled with false statements.

Mr Khan was found guilty of contempt for reasons too numerous to set out in this short blog post. Of interest are the findings in respect of Dr Zafar. His case during the contempt proceedings was that he had instructed his secretary to make amendments to the report. Five of the amendments were made “with Dr Zafar’s blessing”, in the belief at the time that they were true. Three other amendments were said to be medically illiterate amendments made without Dr Zafar’s permission or knowledge. LVI alleged that Dr Zafar had thereby acted dishonestly:

“The Claimant contends that Dr Zafar was simply doing what Mr Khan asked of him, exercising no clinical judgement in the process. They say, in particular, that he acted dishonestly in responding to that email by making those changes. They suggest Dr Zafar was motivated by the earnings he would make from the provision of such reports to include such inaccurate assertions.”

Garnham J rejected that contention of dishonesty. There was no financial basis for Dr Zafar to have acted in that way. However, Garnham J went on, “dishonesty is only one basis for a finding of contempt … contempt can also be based on recklessness. And in my judgment, it was Dr Zafar's recklessness that led to the production of this revised report.” As Garnham J stated:

“A statement made by someone who does not care whether it is true or false is liable as if that person knew what was said was false (see Berry Piling Systems Ltd v Sheer Projects Ltd [2013] EWHC 347 (TCC)), but simple carelessness will not be sufficient (see paragraph 30(c) of the judgment in Berry Piling).”

Dr Zafar was operating an industrial-scale medico-legal business. Garnham J was satisfied that he had not required his secretary to show him the amended report in draft.

“In my judgment the amendments were made by Mr Jardella, on Dr Zafar's instructions and Dr Zafar was content to allow his secretary to make such changes without his checking his work. I am satisfied so that I am sure that Dr Zafar was so busy that he gave no thought to whether or not the amendments were justified. He did not care whether the amended contents of the report were true or false. All that mattered to Dr Zafar was getting another report out.”

Dr Zafar made no attempt to investigate whether the amendments he was asked to make were clinically justified. He simply accepted what he was told by Mr Khan and did what was asked of him. He had “no proper basis” for his revised prognosis. Critically, Garnham J stated that: “If the revised report was going to be a genuine expression of Dr Zafar's opinion, rather than mere recitation of the solicitor's views, they required, at very least, some further enquiry. Dr Zafar's duty to the court required no less.” Dr Zafar was not simply negligent about the content of the revised report; he allowed it to be made not caring whether the assertions therein were true or false, and not caring whether the court was misled as a result. He was, therefore, guilty of contempt of court.

Dr Zafar in fact was also guilty of a dishonest contempt, by making a witness statement which falsely asserted that the revised report had been produced without his permission. He was sentenced to imprisonment for a period of six months, suspended for six months.

Current Awareness

By the Personal Injury team