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Go directly to Jail!

Solicitors and expert witnesses beware!  You face jail sentences if in contempt of court by making or causing to be made, whether deliberately or recklessly, a false statement in a document verified by a statement of truth without an honest belief in its truth (see Civil Procedure Rules (CPR) 32(14) as underlined by the Court of Appeal (Liverpool Victoria Insurance Co. Ltd v Zafar [2019] EWCA Civ 392).

Dr Zafar produced an expert report on the instructions of solicitor, Mr Khan.  He reported he had examined a Mr Iqbal, who had suffered neck injuries due to a road accident, but had fully recovered.  Mr Iqbal complained to Mr Khan that he was still suffering neck pains.  Mr Khan contacted Dr Zafar who produced a second report reporting the on-going pain without any re-examination.  Both reports contained a statement of truth in accordance with the CPR.  The insurers for the defendant driver issued proceedings against Dr Zafar and Mr Khan alleging contempt of court.

In examining previous case law, the judge at first instance found:

“Those who make false claims should expect to go to prison.  Solicitors and expert witnesses who act dishonestly in the evidence they give to the court, whether in support of such claims or otherwise, must expect a similar outcome.  Mr Khan and Dr Zafar, you must understand that the proper functioning of the court system depended on your honesty.  Your conduct in this case amounts to a fundamental betrayal of the trust placed in you by the court.”

He sentenced the solicitor, Mr Khan, to an immediate 15 months’ of imprisonment and Dr Zafar to a 6 month sentence suspended for a period of two years, blaming the solicitor ‘for the whole sorry affair’.  The claimants appealed Dr Zafar’s sentence.  The judge gave leave stating there was no judicial guidance on the appropriate sentence to be passed on an expert witness in such circumstances.  The Court of Appeal gave guidance on the factors a judge should take into consideration but stated “We say at once, however, that 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.”

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