It is commonplace for social media posts to form part of personal injury litigation. They can be provided by parties in the course of disclosure or uncovered throughout the life of proceedings, often in an attempt to discredit a claimant's account of their injuries. Recently, in Zurich Insurance PLC v David Romaine  EWCA Civ 851 (CA), the Court of Appeal granted permission for committal proceedings to be brought against a litigant in person whose Facebook account revealed his dishonest account of his injuries.
On the 17th November 2015, the Respondent issued proceedings against the Appellant's insured, Stanley Refrigeration Limited ("SRL"), and a third party, Lee Beesley Mech & Elec Limited ("LBMEL"), for noise induced hearing loss. The Respondent had been employed by LBMEL as a refrigeration engineer from 1965 to 1971 and by SRL as an apprentice engineer from 1978 to 1985. The Respondent's Amended Particulars of Claim alleged breaches of statutory duty and/or negligence against SRL and LBMEL, which had caused him bilateral long-term noise induced hearing loss and mild tinnitus.
The Respondent relied upon a medical report of Mr Hugh Wheatley, which was attached to his Particulars of Claim. The medical report stated that the Respondent "had not had any noisy hobbies". SRL and LBMEL later obtained the Respondent's medical records, which suggested that he was a professional singer and a motorcyclist. Part 18 questions were subsequently asked of the Respondent. The Respondent stated in his responses that he "was never and have never been a professional singer" and further denied playing with a live band, signing the document with a statement of truth. In his witness statement, again signed with a statement of truth, the Respondent specifically stated: "I do not ride a motorcycle, nor do I participate in or attend motocross or motorsport events".
The Appellant's solicitors commissioned an intelligence report in the light of these discrepancies. The Respondent's Facebook page revealed that:
- the Respondent had ridden motorcycles;
- the Respondent had an interest in fast motorcycles, fast cars and guitars;
- the Respondent performed in a live rock-and-roll band called the "501's";
- the Respondent played an electric guitar when performing with the live band and was the lead singer;
- the Respondent's live band advertised its services to perform at venues;
- the Respondent's live band performed regularly both at pubs, clubs and larger events;
- the Respondent rehearsed regularly.
The Appellant consequently served the intelligence evidence upon the Respondent along with a notice that a strike out application would be made in due course. The Respondent was also advised that if he sought to discontinue, the Appellant would make an application to set aside the notice of discontinuance and/or seek a trial on the issue of his fundamental dishonesty.
The strike out application was made in March 2017 and the Respondent subsequently served a notice of discontinuance.
In September 2017, the Appellant issued and served committal proceedings on the Respondent. In November 2017, the Respondent provided a witness statement opposing the committal.
In August 2017, Goose J dismissed the Appellant's application for permission to commence contempt proceedings on paper without a hearing. He did so on the basis that whilst there was good evidence of false statements being made deliberately, the documents upon which the statement of truth appeared "were not signed by the Defendant". He further recorded that it was not in the public interest that committal proceedings be brought in the circumstances where the Respondent discontinued his claim at a relatively early stage of the proceedings.
The Appellant lodged a notice of appeal. An oral hearing took place before Goose J who refused the application. In the oral hearing, Goose J drew attention to the fact that it did not appear as though the Respondent had been warned that he may have committed a contempt, which he considered a relevant factor.
The appeal came before Lord Justice Davis and Lord Justice Haddon-Cave.
The Court considered that there were two aspects of Goose J's reasoning to consider: the relevance of the absence of warning given to the Respondent and the relevance of the Respondent's immediate discontinuance of the proceedings.
In respect of the failure to warn, the Court of Appeal considered that Goose J was mistaken in his approach to this issue, as an absence of a warning may be a relevant factor in some, but not all, cases. In this case, the Respondent was an alleged contemnor who himself commenced his claim. It was noted that the absence of a warning in practice was unlikely to be of any relevance where the alleged contemnor is the claimant in an underlying personal injury claim and where the false statements were contained in documents prepared by himself or his solicitors and signed with a statement of truth.
When looking at the discontinuance, the Court considered that if a claimant or appellant discontinued proceedings immediately or shortly after being confronted with evidence, or on an accusation of falsity, it was likely to be a relevant factor to be taken into account in most cases. The Court further stated that the "stratagem of early discontinuance should not be seen to be used by unscrupulous claimants or lawyers as an inviolable means of protecting themselves from the consequences of their dishonest conduct". The Court considered that whilst it was right of Goose J to observe that early discontinuance was not a bar to permission to bring proceedings, he erred because he should given regard to the mischief that the stratagem of early discontinuance represents as one of the tactics of claimants and lawyers who engage in the practice of insurance fraud.
Consequently, the Court granted permission for committal proceedings to be brought. LJ Haddon-Cave made clear following his judgment that "a message needs to go out to those who might be tempted to bring - or lend their names to - fraudulent claims: that dishonest claimants cannot avoid being liable to committal proceedings merely by discontinuing their original fraudulent claim".
This judgment paves the way for defendants to initiate committal proceedings against claimants following discontinuance of suspected fraudulent claims. Should defendants have clear evidence of untruths in a claimant's account, particularly by reference to social media posts and in response to part 18 questions or in their witness statements, committal proceedings should be considered.