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The few spoil it for the many – court takes hard line on fraudulent clinical negligence claimant

Posted: 16/07/2018

We have followed with some interest over the last 18 months the developments in the high profile contempt of court proceedings in Calderdale and Huddersfield NHS Foundation Trust v Atwal [2018] EWHC 961 (QB).

As claimant solicitors, the vast majority of potential clients that we see are very genuine people who have been left with significant disabilities and restrictions as a result of failings in their care – or have suffered bereavement due to failings in the care of a family member. Many people bring a claim either because they have been unable to get answers and acknowledgement (Duty of Candour still has some way to go) or because they are unable to work or need care / treatment and the only way to deal with the financial implications is a claim. Few of our clients complain and some inspire us with their bravery and stoicism from beginning to end. We therefore get frustrated when defendant solicitors suggest that the impact of their injuries and their needs are far less than we know them to be. Since most of our clients are completely genuine, it is easy to forget that there are still a small percentage of claimants who deliberately exaggerate claims at best or who at worst are fraudulent. It is their actions and conduct that make NHS Resolution (NHSR) and its solicitors suspicious of claimants as a whole. We had, therefore, to be pleased to see the NHS ‘fight back’ on one such case and the court take a hard line with a fraudulent claimant. Hopefully this will serve as a warning.

The case saw Calderdale and Huddersfield NHS Foundation Trust seek the committal of the original claimant, Sandip Singh Atwal, for contempt on the basis that he had grossly exaggerated his injuries. Mr Atwal pursued a claim against the trust in which he alleged that injuries sustained as a result of shortcomings in his medical care following the fracture of two fingers had a hugely disabling effect on him. The trust admitted failings and made an early offer of settlement (£30,000) which he rejected. He later presented a claim in excess of £800,000 and alleged that his ability to work and to care for himself and live independently were compromised. The defendants doubted the claim that he was making and carried out a number of investigations – video surveillance and social media trawling indicated that Mr Atwal was working and living in a way entirely inconsistent with the case he was presenting. Mr Justice Spencer (himself a former clinical negligence QC) heard the claim and accepted the case that the trust brought. He found against Mr Atwal on 14 separate allegations of contempt.

The trust had approached the allegations of contempt in two ways – the first that Mr Atwal had attempted to interfere with the administration of justice in his clinical negligence claim by making false statements to the medical and other experts involved, intending to deceive them as to the extent of his continuing symptoms and thereby affect the correct administration of justice. The second was that in signing his witness evidence and schedule of loss, he had signed a statement of truth knowing that the contents were false and that again this would affect the assessment of the claim.  

Mr Justice Spencer felt that the allegations of contempt met the criminal standard of proof and that the appropriate punishment for Mr Atwal was a criminal custodial sentence of three months in prison. He commented in his judgment: “My firm and clear conclusion is that a sentence of immediate custody is necessary to mark these serious contempts, and to deter others. I am satisfied that appropriate punishment can only be achieved by an immediate custodial sentence.”

It is unusual to come across a claimant who deliberately exaggerates to this extent. While as claimant solicitors we always aim to present our clients’ cases at their maximum, we are reliant on them giving truthful evidence to us and our experts. In cases where relatively minor injuries seem to be having a very significant impact, it is important that detailed evidence is obtained to explain this – and it is for claimant solicitors to ‘road test’ the validity of the evidence. Should a claimant go to these lengths to deceive his or her team and the NHS, this is the level of punishment that should now be expected. It is also a useful reminder of how times have changed – research on social media as to a claimant’s activities is something defendants do now regularly undertake and can be a trap for those who are not being entirely truthful. 

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