London Borough of Havering v Marc Bowyer, James Jones and Richard Bowyer

High Court - 26 & 27 July 2012

On 27 July 2012 the Divisional Court sentenced three fraudsters to prison for contempt of court.  Marc Bowyer, the Claimant in the original action, was sentenced to two months; his friend James Jones, who supported the fraud, was imprisoned for one month and Marc Bowyer's father, Richard, who the court held was the driving force behind the claim was sentenced to four months imprisonment. John Palmer, Director in DWF's Local Authority team, acted for Havering Council in their successful contempt application.

Background

Marc Bowyer claimed damages against the Havering Council arising out of an accident which he said occurred when he tripped on a pothole, at 1:30 am on 11 June 2006. His friend James Jones who was out with him and called an ambulance backed up his story as did his father, Richard Bowyer.

The Council completed initial enquiries and admitted liability. However, when a medical report was produced on Mr Bowyer's behalf it revealed that the contemporaneous medical records were inconsistent with the allegations made. They suggested that he had been injured when he fell from a wall.  Consequently the admission of liability was withdrawn.

Undeterred, Mr Bowyer issued proceedings against the Council. The claim presented was worth in the region of £100,000 but was likely to increase.  Evidence was obtained from the makers of the contemporaneous medical records confirming their contents.  Moreover, once the ambulance records and in particular the recording of the initial 999 call were reviewed, it was revealed that the real cause of Mr Bowyer's accident was, indeed, a fall from a wall rather than a trip on a pothole.  It transpired that Mr Bowyer was found by the paramedics a 10 to 15 minutes' walk away from where he had identified the offending pothole, in the middle of Harrow Lodge Park by a boating lake, coincidentally by a 3ft wall.

On the evening in question Mr Bowyer and his friend, James Jones, had been to a party – they both claimed to have had only a couple of drinks and that they were not drunk.  Mr Bowyer's evidence was that he had not moved from the point where the accident occurred to when the ambulance crew arrived.

Following exchange of witness evidence and shortly before trial Mr Bowyer discontinued his claim and the Council recovered its costs.

The Police

Given the compelling nature of the evidence, the case was referred to the police to consider a prosecution against both Marc Bowyer and James Jones.  Enquiries were made and both witnesses questioned but perhaps surprisingly the police/CPS decided not to pursue proceedings.

The Contempt Proceedings

On the strength of the evidence against Marc Bowyer, James Jones and Richard Bowyer, the Council obtained permission to issue contempt of court proceedings against all three. 

Marc Bowyer admitted most of the counts of contempt alleged against him as did James Jones, but only shortly before trial.

Richard Bowyer denied the allegations of contempt made against him to trial.

On 26 July 2012 the Council obtained judgment against Richard Bowyer who was found to be in contempt of court.  He had continued to argue that he had no knowledge of the fraud and that he only became aware of the fraud when his son had served his defence to the contempt proceedings.  However, the court held that this was not credible and that Richard Bowyer was the driving force behind the claim.  Furthermore, the court noted that he had some familiarity with the legal process having himself previously made a large successful personal injury claim against another local authority.

Marc Bowyer's case had always been presented on the basis that following the accident he had been unable to move due to the injury sustained.  He was however unable to explain how the ambulance crew who attended him after the accident found him the 10 to 15 minutes' walk away from where the pothole was located.

It was suggested that Mr Jones had only mentioned the fall from a wall in an attempt to speed up the ambulance attendance.  An analysis of the 999 call revealed that the possibility of a delay (due to the high number of emergency calls that night) was only mentioned at the end of the call, after Mr Jones had already referred to the wall. 

A final bizarre twist was that under cross-examination Richard Bowyer said that his son had told him that en route to the party he had in fact tripped over the pothole and on the way back had fallen from the wall.  This was the first time this had ever been mentioned.  In giving judgment Singh J commented on this issue:-

"We are disturbed that it indicates a willingness on the part of the Third Defendant to make up things during the course of his sworn evidence in order to bolster his account when he saw difficulties in it exposed through cross-examination". 

In passing sentence Rafferty LJ referred to the recent Supreme Court decision in Summers v Fairclough Homes Limited (2012) and the judgment of Moses LJ  in South Wales Fire and Rescue Service v Smith (2011) HC  where he said:-

"For many years the courts have sought to underline how seriously false and lying claims are to the administration of justice.  False claims undermine a system whereby those who are injured as a result of the fault of their employer or a defendant can receive just compensation".  He went on:-

"Those who make such false claims if caught should expect to go to prison.  There is no other way to underline the gravity of the conduct.  There is no other way to deter those who may be tempted to make such claims, and there is no other way to improve the administration of justice".

Comment

This is the first case to reach the courts after Summers. It emphasises, as highlighted in the Summers judgment, that contempt of court proceedings remain one of the key mechanisms to punish fraudsters and achieve deterrence. 

As well as providing a remedy for fabricated incidents such as this one, contempt proceedings are an ideal remedy for exaggerated claims, which currently fall outside the acceptance criteria for IFED, the specialist police unit dedicated to tackling insurance fraud.  DWF acted in such a case, obtaining contempt convictions in Brighton & Hove Bus & Coach Co Ltd v Sherihan Brooks & Ors (2011) HC (click here to see the DWF update) where the medical experts were deliberately misled as to the extent of a claimant's injuries to inflate the claim for damages.

The impact of a custodial sentence cannot be underestimated.  Equally, the far-reaching impact of such a sentence in terms of loss employment and costs must not be overlooked. This case can be used to send a strong message not just to potential fraudsters but also to solicitors who represent them (who will usually end up having worked for free) that when fraudulent activity is detected they will be pursued. 

The days when dishonest claimants who are found out can simply walk away from their actions are over.   Procedures are in place to enable fraudsters to be punished and our experienced specialists are ready to use them. Delay is the enemy in this jurisdiction. The process is quick and relatively inexpensive and it is difficult to imagine a more potent counter fraud message to send fraudsters than they risk losing their freedom.

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