Out-Law / Your Daily Need-To-Know

Walton v Kirk

Out-Law Guide | 16 Apr 2009 | 4:08 pm | 5 min. read

A claimant who exaggerated her symptoms in applications for state benefits and later verified the truth of those statements in personal injury litigation was found guilty of a contempt of court in proceedings brought by the defendant's insurers.

Carol Walton v Joanne Kirk

  • [2009] EWHC 703 (QB)

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Facts

In September 2001, Mrs Kirk was involved in a minor road traffic accident when Carol Walton drove into the back of her car. Her injuries initially appeared slight but her condition deteriorated in mid 2002 to the extent that she gave up work in October.

In February 2003, Mrs Kirk claimed Disability Living Allowance. In her claim form she said she was unable to carry out the simplest tasks without help and that it took her five minutes to walk five metres. The form included a declaration that the information given was correct and complete and warned that knowingly giving false information could result in prosecution.

Later that year, two doctors suggested Mrs Kirk may be suffering from fibromyalgia, a non-specific diagnosis with a spectrum of symptoms that may vary considerably.

In September 2004, Mrs Kirk applied for Incapacity for Work benefit, stating that she was unable to sit or stand comfortably, used walking sticks and crutches for walking and could not lift either arm to her head or hold a pen. She also indicated she was suffering from memory loss and speech difficulties.

Again, the form included a declaration and a warning that action might be taken if the information was incorrect or incomplete.

In January 2006, Mrs Kirk applied for a disabled parking badge, stating she could walk only 10 steps on a good day and was bedridden on bad days.

The proceedings

In August 2004, Mrs Kirk issued proceedings against Ms Walton claiming damages for personal injury of over £750,000.

Ms Walton's insurers paid £25,000 into court and engaged a surveillance company. Mrs Kirk was secretly filmed in March 2005 and again in September and December driving, walking and shopping, apparently without discomfort or obvious signs of disability. 

In her first witness statement signed in July 2005, however, Mrs Kirk listed 66 separate symptoms and contrasted the active lifestyle she had enjoyed before the accident with the very limited activities she could carry out afterwards.

In March 2006, the videos were disclosed.

Mrs Kirk continued with the proceedings. In May and June, she produced two further statements seeking to explain the video evidence and her pre-accident state of health. That September, she responded to a formal request for further information that focused on the answers she gave when applying for Incapacity for Work benefit and the disabled parking badge.

In both cases, she confirmed the information in the forms was true and verified her response by a statement of truth, as required by the court rules.

But in September/October2006, Mrs Kirk accepted the £25,000 paid into court and agreed to pay the other side's costs from 21 days after the payment was made until the date of acceptance. These were eventually settled at £21,000. Effectively, she recovered almost nothing from the litigation.

Following settlement, two further videos were obtained. Ms Walton's insurers issued an application for committal for contempt. The county court granted permission in July 2008. 

Contempt of court

Under the Civil Procedure Rules, proceedings for contempt of court may be brought by the Attorney General or with court permission against a person "if he makes, or causes to be made, a false statement in a document verified in a statement of truth without an honest belief in its truth"(CPR 32.14). 

Three elements have to be established beyond reasonable doubt: the falsity of the statement; that it has interfered (or would be likely to interfere) with the course of justice in some material respect; and that, at the time it was made, the person making it had no honest belief in its truth and knew it was likely to interfere with the course of justice.

Penalties for contempt include a custodial sentence or a fine.

Judgment

Discrepancies between statements verified by a statement of truth and video evidence do not automatically give rise to a contempt of court. The judge found Mrs Kirk in contempt in two respects, but dismissed many of the insurers' other allegations.

On the evidence, he was satisfied that, until the mid or late 1990s, Mrs Kirk had lived an active life but that she had suffered chronic back pain since 1998 which significantly limited her activities.

The 2001 accident, however, had had an impact on her condition. She had been injured to some extent and so was justified in bringing a personal injury claim. The judge also thought it understandable that she had attributed her worsening condition from 2002 onwards to the accident and that it was more likely than not that she had fibromyalgia.

Although Mrs Kirk's presentation of her condition was unremittingly bleak, the judge felt he should be slow to criticise her for emphasising its worst elements.

He did, however, criticise her failure to describe how her condition varied on good days and bad, even though the benefit forms specifically asked for this information. He also found her description of her pre-accident condition highly misleading.

But he concluded that the discrepancies between her witness statements and the video evidence did not amount to a contempt of court.

The crucial document, however, was her response to the formal request for information, in which she verified the answers given in her applications for state benefits.

The judge found these so incomplete that they were positively misleading. Her suggestion that she may have suffered a brain injury, which was not backed up by any medical evidence, was "a shocking exaggeration".

In his view, Mrs Kirk "overstepped all appropriate boundaries" when she falsely completed her applications for Incapacity for Work benefit and the disabled parking badge. When given the opportunity in the litigation to retract these untruths, she had restated them to assist her personal injury claim.

It was this deliberate failure, exacerbated by the suggestion of a brain injury, which in the judge's view made the statements false. Mrs Kirk knew they were false and that they would interfere with the course of justice. Accordingly she was found in contempt of court and fined £2500.

Commentary

Although the decision shows that contempt of court proceedings can succeed against claimants who exaggerate their claims, it also demonstrates just how difficult it can be to prove allegations "beyond all reasonable doubt".

Claimants in personal injury actions are often given the benefit of the doubt because of the fluctuating nature of their condition or because the exaggeration is seen as an understandable attempt to ensure that a genuine condition is not underestimated.

The judge in this case was prepared to give Mrs Kirk the benefit of the doubt to quite a large degree. Most of the insurers' allegations were dismissed.

But while it may not be a contempt for a claimant to exaggerate symptoms, say, to an examining doctor, the judge considered "very different considerations apply to an application for state benefits which expressly asks about variations in the stated condition; which warns of the consequences if the answers are incomplete; and which is subsequently verified by a statement of truth in litigation."