Telephone records and contempt of court for false evidence

You do not often think of prisons in connection with the evidence given in civil proceedings, so you sit up when you see a judgment which begins:

The Claimant, Accident Exchange Limited (“AE”) applies to commit the Defendants to prison on the grounds that each of them engaged in conduct which interfered with the due administration of justice and they were thereby in contempt of court.

The case is Accident Exchange Ltd v Broom & Ors [2017] EWHC 1096 (Admin) (24 May 2017) and it involved evidence given in multiple car hire claims by a company called Autofocus Ltd (or, rather, the individuals employed by Autofocus), whose business was giving evidence as experts on behalf of the defendant insurers in claims for car hire rates following road traffic accidents.

As so often, I am obliged to Gordon Exall’s Civil Litigation Brief and his article Lies, damn lies and car hire quotes: computer records and internal documents preferred to witness evidence both for tipping me off about this case and for the summary of what is a very detailed judgment. The Law Gazette wrote about it here.

The allegations against the defendants vary slightly in their wording but the broad claim was that they had been:

…verifying documents for use in various proceedings by signing them with statements of truth when they were false to their knowledge or when they did not believe them to be true…”.

Put briefly, the defendants’ evidence in several cases was that they had obtain quotations from various car hire companies, generally by making phone calls to branches. This evidence had generally been accepted in the individual cases and it was only when the claimants noticed a pattern of low rates that close attention was paid to the detail. For various reasons – calls to named individuals who didn’t exist, alleged answers which could not have been true and so on – it became clear that the evidence was not merely incorrect but dishonestly given.

Among the challenges were examinations of telephone records which either had not happened or, if the calls were made at all, were of insufficient duration for the collection of the alleged evidence.

The judge concluded:

The evidence that AF was involved in the systematic, endemic fabrication of evidence in which the Defendants and each of them knowingly and actively participated throughout the material time is overwhelming.

….The defendants “have committed contempt of court and/or perjured themselves”.

A previous judge had described these activities as “perjury on an industrial scale”. The individuals face prison sentences. Three respected firms of solicitors were named in the proceedings in circumstances which they would rather have avoided.

Conveniently, the liquidator of Autofocus had gathered some at least of the company’s business records onto a single drive and the court gave permission for the claimants to use this material. The drive contained 884,000 documents, over 2 million pages.

Much of the evidence against the defendants resulted from old-fashioned interviews, but some of it lay in the telephone records. It was possible to cross-check the evidence given in the individual proceedings (usually in the form “[I] telephoned eight companies….and asked each one to quote for hire of…”. Itemised telephone records from the liquidators’ disk were the source of the conclusion that that no telephone calls had been made on the relevant dates or that calls did not last long enough for the relevant information to be obtained. There were also suggestions that the metadata of the document recording calls had been edited.

Not all the evidence about the telephones was this kind of hard, bang-to-rights contradiction of the witness evidence. At one point the judge said “it makes no sense why someone who is using an expensed company telephone to make business calls suddenly decides to use his own telephone, but only in respect of some calls”.

__________

It is almost superfluous to draw an express conclusion here. False evidence had been accepted in many cases. It was only the aggregation of many results which drew attention to the falseness of it. Although, once it was spotted, several strands of new evidence showed up the perjury, the existence of contemporaneous documents was a significant factor in proving the contempt of court and perjury. Someone thought to look for the documents, and they happened still to exist.

 

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, Evidence. Bookmark the permalink.

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