PAP witness statements “can be grounds for contempt”

Etherton: Led bench

A witness statement verified by a statement of truth made by a prospective claimant before the commencement of proceedings can give rise to contempt, the Court of Appeal has ruled.

It called for a change in the CPR so that false statements made in witness statements served in compliance with a pre-action protocol (PAP) no longer fall outside CPR 32.14, which covers such statements made within actual proceedings.

In Jet 2 Holidays Ltd v Hughes & Anor [2019] EWCA Civ 1858, the claimants received the witness statements from the two defendants about a potential holiday sickness claim in purported compliance with the personal injury PAP.

Jet2 rejected the claim after findings various images and comments posted online which indicated that the defendants and their children were physically well during the holiday in Lanzarote. The defendants did not pursue their claim.

The company sought permission to bring committal proceedings against them for the allegedly false statements. Each defendant said they would contest the claim and made further witness statements confirming the truth of their case.

Judge Owen ruled as a preliminary issue that there was no jurisdiction to hold the defendants in contempt because the original witness statements were not made in any proceedings.

He also rejected Jet2’s application to add additional grounds of contempt arising from the further witness statements. Jet2 appealed.

A joint ruling of Master of the Rolls Sir Terence Etherton, Lord Justice Hamblen and Lord Justice Flaux agreed with Judge Owen that jurisdiction to bring the committal proceedings was not conferred by rule 32.14, as it did not cover witness statements made before the commencement of proceedings.

But, irrespective of the CPR, the court has an inherent power to commit for contempt, they said, adding: “It is well established that an act may be a contempt of court even though carried out before proceedings have begun.”

It was irrelevant for these purposes that the defendants should have used the disease and illness claims PAP, or, if the claims were made today, the resolution of package travel claims PAP; nor did it matter that neither the personal injury nor disease PAP required a witness statement verified by a statement of truth.

“It is sufficient that the respondents, in purported compliance with a PAP, set out their claims in a witness statement verified by a statement of truth plainly for the purpose of giving the impression to the appellant of greater weight and conviction to their claims than might otherwise be the case…

“A dishonest witness statement served in purported compliance with a PAP is capable of interfering with the due administration of justice for the purposes of engaging the jurisdiction to commit for contempt because PAPs are now an integral and highly important part of litigation architecture.”

The court said it was “not satisfactory” that this situation fell outside CPR 32.14. “It is highly desirable, therefore, that the possibility of contempt in relation to such statements should be expressly addressed in the Civil Procedure Rules and a practice direction.”

Judge Owen refused the application to add additional grounds of contempt because it would be oppressive and contrary to the overriding objective to allow a claim to continue which ought not to have been brought.

But as the appeal court had decided the court did have jurisdiction, this mean Judge Owen made an error of principle in refusing to permit the amendment.

The judges exercised the discretion afresh and considered it appropriate to grant permission.

“The new witness statements fall within CPR 32.14. They did not simply repeat what had been said in the original witness statements but gave further false evidence in seeking to explain the social media posts.

“The respondents’ conduct in making the further witness statements, just as much as in making the original witness statements, had to satisfy the stringent requirements for suitability for contempt proceedings. They did so…

“For the purposes of the present appeal, it is sufficient to say that there is an apparently strong case of contempt in relation to the making of the further witness statements and a clear public interest in the bringing of contempt proceedings in respect of them.”

Manchester firm Horwich Farrelly acted for Jet2, and also for Admiral Insurance in bringing proceedings against Pastor Stephen Olayinka, from Luton, who the solicitors reported today has been jailed for three months and ordered to pay costs of £13,500 plus VAT.

months after being found guilty of contempt for making false statements in relation to a personal injury claim.

As well as being ordered to pay Admiral’s costs of £13,500 plus VAT, he has to pay Horwich Farrelly’s costs of the personal injury claim, which was declared fundamentally dishonest.

The court found that Mr Olayinka’s claim for loss of earnings following a road traffic collision was fundamentally dishonest and that he had misrepresented his medical history to his medical expert, as he failed to disclose that his injuries were actually caused by him lifting heavy luggage before the accident had occurred.

He had claimed that he sustained such severe injuries in the accident that he was unable to complete a lucrative IT consultancy contract and missed out on £31,000 in earnings.

But Horwich Farrelly said its investigations quickly discovered there was no mention of the collision or any resulting injuries in Mr Olayinka’s medical records, and that the IT consultancy contract had been significantly reduced in scope before he gave notice that he wished to terminate the contract on the morning before the collision.

    Readers Comments

  • Idris says:

    This ruling could have huge implications in RTA fraud cases. Depends though on if the insurers have the appetite to bring such claims.

  • John Welch says:

    The decision concerning contempt in the Jet2 case seem to be in accord with common sense and the common good. All statements in legal actions should be honest and the court must be able to deter and protect itself from the dishonest.

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