Are there any refuges left for the dishonest Claimant in committal proceedings? The effect of Zurich Insurance Plc v Romaine  EWCA Civ 851
December 12, 2019
In my earlier article (see here) I argued that despite a concerning approach to dishonesty in Smith v Ashwell  1 WLUK 541 (23/1/19), Defendants and insurers should be assured that the prevailing judicial attitude was one of increasing censure for any form of dishonesty.
That, happily, has been borne out by a Court of Appeal judgment issued just 11 days later after the article was published: Zurich Insurance Plc v Romaine  EWCA Civ 851. It is a case of particular assistance to the insurance industry.
Summary of implications for insurers and Defendants
Romaine was an insurer’s appeal against a refusal to allow an application for committal to be brought. The appeal succeeded. The judgment stresses that previous escape clauses for dishonest claimants in committal permission applications (for instance, “the claim was extremely low value” or “the Claimant discontinued at an early stage”) which used to have traction with judges are no longer proper grounds on which a judge should refuse permission to seek committal trials. It follows that, in the right circumstances, a Defendant need not confine their ambitions to a formal dishonesty finding; they may go further and use a committal as yet another weapon in their armoury to discourage the sort of dishonesty that is so expensive to the insurance industry.
The background to the dishonesty
The Claimant, Mr Romaine, issued proceedings for noise induced hearing loss. It was a low value claim, worth not more than £5,000. The medical report stated that the Claimant had no “noisy hobbies”. However, it came to the Defendant’s attention that the Claimant in fact had a keen interest in fast motorcycles and cars and performed in a rock-and-roll band. These were all hobbies which obviously could have affected causation. Upon the Defendant giving the Claimant notice of a strike out application on the ground of dishonesty, the Claimant discontinued his claim later that day.
The decision of the High Court
Six months later, the Defendant issued committal proceedings. The Defendant needed to satisfy the court not whether a contempt had been committed, but whether it was in the public interest for proceedings to be brought to establish whether a contempt had been committed. Permission was denied by the High Court, Goose J observing: “Although it is in the public interest that dishonesty in litigation is identified publicly, it is not in the public interest that committal proceedings be brought in the circumstances of this case, where the Defendant discontinued his claim at a relatively early stage of the proceedings”. Goose J appeared also to be influenced by the fact that the Defendant had not explicitly warned the Claimant of his potential committal for contempt of court at the point when the Defendant had received clear grounds for dishonesty in its private investigator’s report.
The Court of Appeal’s approach
The Court of Appeal reversed the High Court’s decision, and gave permission to begin contempt proceedings. It found the absence of a warning was irrelevant where, as here, the Claimant had been responsible for bringing the fraudulent claim. As for discontinuance, the Court of Appeal observed this: “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 problem has become even more acute in recent times because of one-way cost shifting and the costs of proving “fundamental dishonesty” under CPR 44.16”.
The judgment could not be clearer as to the mischief that early discontinuance represents, and the real prospects of success that committal applications will have even where the claim was low value and the discontinuance happened early on in proceedings.
Whilst the senior courts have been treating fraudulent PI claims for years as socially corrosive, this judgment serves to emphasize the continuing determination of the courts to re-balance the insurance economy and drive out dishonesty. Claimants beware!