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Doctor “should have been jailed for contempt” like solicitor was

McCann: Court has poured cold water on formulaic mitigation

A doctor who received a suspended sentence after running a “factory” producing 32 medical reports in a day should have been jailed like the solicitor he worked with, the Court of Appeal has ruled.

The Court of Appeal, led by Master of the Rolls Sir Terence Etherton, agreed that Mr Justice Garnham’s decision was overly lenient since the recklessness bordered on dishonesty, but ruled that Dr Asef Zafar should not receive a more severe sentence.

Dr Zafar received a sentence of six months, suspended for two years, after being found guilty of 10 of 16 allegations of civil contempt of court in October 2018.

At the same time, personal injury (PI) solicitor Kamar Abbas Khan, founder of former Huddersfield firm Taylor Knight & Wolff, was sent to prison for 15 months [1] for lying in witness statements and forging a client’s signature.

Liverpool Victoria Insurance Company (LV=), which brought the application for committal, appealed the decision and asked the court to clarify the circumstance in which someone found guilty of civil contempt could escape a custodial sentence.

Dr Zafar, an NHS GP, admitted that his private practice as a medico-legal expert witness had generated some £350,000 a year in additional gross income after perfecting a business where he produced a report in a low-value PI case in just 15 minutes, including examining claimants.

The case against the two only came to light because an employee of Dr Zafar accidentally included in a court bundle an earlier report saying a claimant had recovered completely from his injuries, instead of a revised one saying the man needed up to eight months to recover.

The court concluded that a suspended term of six months “fell outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate”.

It acknowledged that the correct penalty for contempt of court involved a “value judgment” and the weighing of several factors.

However, in a joint ruling [2], the judges said the approach of the criminal courts to contempt was useful “though not a precise analogy”. The culpability and harm caused by the contemnor was an appropriate consideration.

“The deliberate or reckless making of a false statement in a document verified by a statement of truth will usually be so inherently serious that nothing other than an order for committal to prison will be sufficient,” they said – whether by a lay or expert witness.

It should only be suspended if “one or more powerful factors” justified it.

The “inherent seriousness” of Dr Zafar’s contempt was aggravated by six factors. These included that, as the trial judge had found, he was motivated by financial gain; wanting to keep his “report-writing factory running at full capacity”.

Also, he had persistently produced false statements, including one on which he had acted with “deliberately dishonesty”. This had the effect of prolonging the case.

As in a criminal contempt case, a very early admission would be a mitigating factor. The judges believed it could lead to a reduction in sentence of up to a third, but after a trial had begun this would be “on a sliding scale down to about 10%”.

Dr Zafar was found in the trial to have been reckless, which “in principle” made him “less culpable than one who acts intentionally”.

However, the appeal court recorded that his recklessness “came close to the borderline between reckless and dishonesty”.

Garnham J had given “disproportionate weight” to the fact “that in most respects the misconduct was reckless rather than intentional” when really there was “little difference in culpability between those two states of mind”.

The court concluded that the term of committal should have been “significantly longer” than six months, even taking into account Dr Zafar’s mitigation.

“We do not think the respondent could have appealed successfully against a term of 12 months, and we cannot think that a term of less than nine months was appropriate.

“Secondly, the term should have been ordered to be served immediately, there being no powerful factor in favour of suspending it.

“We are satisfied that a suspended term of six months fell outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.”

However, the court added that it had “come to the conclusion that we should not impose a more severe sentence”, mainly because it had sought to give guidance and it would be “unfair” to Dr Zafar “to impose upon him the adverse consequences of that guidance”.

The court ruled that Dr Zafar should pay LV=’s costs, which are in six figures.

Ronan McCann, managing partner of Manchester law firm Horwich Farrelly, which acted for LV=, said: “The Court of Appeal has poured cold water on formulaic mitigation, the delay in proceedings, or the suggestion that being reckless is not as significant as outright dishonesty. No longer will courts be able to rely on these points to suspend a sentence.”

Meanwhile, the Supreme Court ruled yesterday in Takhar v Gracefield Developments Limited and others [2019] UKSC 13 [3] that a person who applied to set aside an earlier judgment on the basis of fraud did not have to demonstrate that the evidence of this fraud could not have been obtained with reasonable diligence in advance of the earlier trial.