Swedish man who exaggerated pain following NHS operation found in contempt of court in English High Court

About this case:

• Citation:
  [2023] EWHC 1724 (KB)
• Judgment:
  External link
• Court:
  England and Wales High Court
• Judge:
  Mr Justice Constable

Nottingham University Hospitals NHS Trust brought a claim against Sven Bogmer for contempt after it obtained video footage that indicated that he had greatly exaggerated the level of pain he was in following a surgery in 2014. Mr Bogmer did not contest the claim and had been assessed by his GP as not fit to stand trial.

The case was heard by Mr Justice Constable of the King’s Bench Division, with Romilly Cummerson appearing for the claimant. Mr Bogmer was unrepresented and did not appear.

Interfered with justice

The defendant, who moved to the UK in 2010, was described as having suffered nerve damage during previous surgery in Sweden to treat an occupational injury, affecting the function in his right arm and hand. Following his arrival in the UK he made a claim for Disability Living Allowance citing difficulties with his hand, with his carer also reporting that he sometimes blacked out due to chronic obstructive pulmonary disease.

In the summer of 2014 Mr Bogmer was referred to the claimant for coronary artery bypass surgery. The surgery was successful, however Mr Bogmer claimed that he suffered a nerve injury to his right arm, alleging that the surgeon had negligently opted to use the right radial artery to extent the bypass graft. He made a claim against the Trust totalling over £227,000, which was settled in January 2021 by a drop hands offer made by the Trust.

Video surveillance was carried out on the defendant in January 2020, which showed him performing various actions using his right hand without discomfort or difficulty, including complex actions such as using a pressure washer trigger. It was alleged by the claimant that Mr Bogmer had interfered with due administration of justice by making false statements and representations to medico-legal experts and by making false statements in his particulars of claim that he had verified with a statement of truth.

In correspondence with the claimant, Mr Bogmer stated that he was not going to contest the case due to his health and mental health deteriorating rapidly. A letter was obtained from his GP stating that he was not fit to stand trial. He expressed a desire for the case to go ahead, as he simply wanted it to be over.

No evidence of weakness

In his decision, Mr Justice Constable observed: “It is not possible for me to conclude that, as set out in the grounds of contempt, the statements made to the various medico-legal experts about his condition between 2010 to 2014 was dishonestly false. Indeed, it may be that the statements were correct and it was the statements being made in the context of care and disability allowances that were grossly exaggerated.”

He continued: “However, on the basis of the blatant contradiction between his representation of his condition prior to the index surgery to the medico-legal experts and what he was claiming his condition was in the same period in the context of care and disability allowances, I am compelled to the regrettable conclusion that I am sure, to the criminal standard, that he was not being honest. If his statements to the medico- legal experts were true, his disability and care claims were untrue or if his statements in his disability and care claims were true, his statements to the medico-legal professionals were untrue.”

Assessing the video evidence, Constable J said: “Whilst it is right to acknowledge that the video surveillance evidence does not show Mr Bogmer undertaking any particular personal care activities, I am nevertheless sure, having seen that footage, that these statements are a gross exaggeration of his (in)capabilities. As the medico-legal experts jointly agreed, there is simply no evidence of a particular weakness in the right arm/hand at all. Moreover, as with previous categories, even if the statements were true (which I do not believe to be the case), they remain fundamentally dishonest in the context of a claim in which the loss of function is said to have been caused by the surgery in October 2014.”

He concluded: “I have no doubt that Mr Bogmer, by these actions, intended to interfere with the administration of justice, knowing that his actions were likely so to interfere. This is because he knew they would have caused him to be paid significant compensation to which he was not entitled. I am sure that the statements and representations, if persisted in, would in fact have interfered in the administration of justice.”

The defendant was therefore found to be in contempt of court, with the case continued for procedure addressing the penalty to be imposed.