Paul Higgins acted with Rob Weir QC of Devereux Chambers for the insurer, instructed by Ronan McCann of Horwich Farrelly.
In Liverpool Victoria v Zafar  EWCA Civ 392, the insurer appealed the decision of Garnham J to commit a medico-legal expert, Dr Zafar, to a 6 month suspended sentence of imprisonment. Dr Zafar had seen the claimant and written a report confirming that he had fully recovered from a 1 week whiplash injury. A few days later, at the request of the claimant’s solicitor, he recklessly changed this report to say instead that his symptoms were ongoing and, adopting the prognosis suggested by the solicitor, that he would recover within 6-8 months.
The Court of Appeal accepted the insurers’ submissions that: (1) reckless contempt by an expert would usually be almost as culpable as an expert who does so intentionally; (2) the mitigatory effect of delay was limited to delay not caused the contemnor; (3) expert contempt is even more serious than litigant contempt; (4) the starting point is a term of imprisonment for 1 year; (5) the fact that the professional has brought ruin upon himself will not in itself be a reason not to impose a significant term of committal; (6) one or more powerful factors will have to be shown to establish suspension of the sentence; reckless is unlikely to be such a powerful factor.
The appeal was allowed but limited to a declaration to that effect because the contemnor should not suffer further as a result of new guidelines given in this case.