This week, reports have surfaced on the case of Liverpool Victoria Insurance Company v Khan and others  EWHC 2581 (QB), in which Mr Justice Garnham handed down judgment on the negligent activities of medical expert, Asef Zafar, resulting in a custodial sentence.[i]
The present case arose out of an RTA accident, which occurred in December 2011. The claim was referred to Kamar Abbas Khan, founder of Taylor Knight & Wolff (TKW) and was subesquently brought against the defendant, who was insured by LV=.
Mr Khan consulted a medico-legal agency, run by his Aunt, which instructed Asef Zafar, of UK-Doctors.com. Dr Zafar produced his first report, dated February 2012, in which he identified that the claimant had ‘fully recovered’ from his injuries ‘within a week’.
However, Mr Khan requested a revised version, as the claimant was ‘not happy with it’. In the second report, which made no reference to the original, Dr Zafar stated that the claimant’s symptoms had ‘not yet improved’ and would need ‘6 to 8 months’ for a full recovery.
The second report did not reach the defendant, though. In the run up to trial, at Slough County Court, a TKW paralegal mistakenly sent the original report to the defendant. Subsequently, an ‘amended trial bundle’, containing the revised report, was sent. The claimant later spoke with LV=, in September 2015, and confirmed that TKW were attempting to run a fraudulent insurance claim.
As a result of its investigations, the claim collapsed and LV= applied for committal proceedings for contempt of court against Mr Khan, Dr Zafar, the TKW paralegal, and the individual who referred the claim to TKW. The committal application was granted by Her Honour Judge Karen Walden-Smith, sitting as a High Court judge.[ii]
Dr Zafar, based in Surrey, had built up a ‘highly successful one-man medico legal career’. He generated ‘an income from his medico-legal work of £350,000 per annum, on top of his NHS salary’. In order to turn over his additional salary, he produced an ‘astonishing’ 32 reports per day, charging £70 per case, and delegating work to up to 4 secretaries. As such, it took just 15 minutes for him to conduct an examination of a personal injury victim and produce a report.
At the High Court of Justice hearing, Garnham J stressed the importance of maintaining a trusting relationship between the courts and expert witnesses, in order to uphold a system of justice:
‘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’.[iii]
He reasoned that Dr Zafar had not just been ‘negligent about the content of the revised report’, but also allowed assertions to be included, ‘not caring whether they were true or false, and not caring whether or not the court was misled as a result’. Further, he was ‘motivated’ by his ‘desire to keep the report writing factory ... running at full capacity so as to continue making ... [an] ... astonishing profit’ and was compelled, by ‘cowardly desire’, to ‘cover up’ what he had done.
The judge did not consider that the medical expert had acted ‘dishonestly’, as he:
‘... had (almost) nothing to gain and everything to lose by producing a dishonest report in February 2012 for TKW, a firm which had not previously sent him work and whose work Dr Zafar did not need’.
Regardless, ‘dishonesty’ was not the only basis for a finding of contempt. It could also be based on ‘recklessness’.
Accordingly, Dr Zafar was found guilty of 10 out of 16 allegations of civil contempt of court and was handed a 6-month suspended jail sentence.
Martin Milliner, director of claims at LV=, has said, in reaction to the latest court ruling:
‘Whilst this case has taken a considerable amount of time, effort and cost, it has been worth it in order to send a stark warning to the “professional enablers” of fraudulent claims’.
[i] Nick Hilborne, ‘Jail for PI lawyer who lied in witness statements’ (10 October 2018 Litigation Futures) <https://www.legalfutures.co.uk/latest-news/jail-for-pi-lawyer-who-lied-in-witness-statements> accessed 10 October 2018.
[ii] Neil Rose, ‘Lawyers in dock after contrasting medical reports come to light in RTA claim’ (20 October 2016 Legal Futures) <https://www.legalfutures.co.uk/latest-news/lawyers-dock-contrasting-medical-reports-come-light-rta-claim> accessed 10 October 2018.
[iii] Keiligh Baker, ‘Doctor and solicitor who won insurance scam for 'greedy' car crash victim saying his injuries would last for up to eight months when they healed within a week are handed a suspended sentence and jailed for 15 months’ <https://www.dailymail.co.uk/news/article-6255985/Crash-cash-doctor-solicitor-given-custodial-sentences.html> accessed 10 October 2018.