Males: Settlement agreement did not prevent criminal prosecution
The Court of Appeal has rejected an appeal against conviction by one of the three people jailed for conspiracy to defraud legal expenses insurer DAS through a medical reporting agency.
The appeal by Sally Jones is the end of the line for the trio, with the court reporting that the other applications for permission to appeal by her, Paul Asplin and David Kearns have been refused.
In July 2018, after a private prosecution brought by DAS, Ms Jones was sentenced to three years and nine months’ imprisonment and disqualified from acting as a director for eight years.
Mr Asplin was sentenced to seven years in jail and disqualified as a director for 12 years. Mr Kearns was sentenced to four years and three months’ imprisonment.
Mr Asplin was the chief executive of DAS until 2014, while Mr Kearns was employed until the end of 2004 as head of claims and general manager.
Ms Jones had worked for DAS as head of marketing but she left in 1999 when she began a relationship with Mr Asplin. They married in 2001 but divorced four years later.
Mr Asplin and Mr Kearns set up a company, Medreport, and arranged for DAS to contract with it to provide medical reports – it handled over 90% of the reports DAS required.
They were accused of making significant secret profits over a period of around 14 years, keeping their involvement in, control of and profit from Medreport secret from DAS all the time.
Ms Jones became a manager of Medreport and later an owner and director, continuing to run the company after Mr Asplin transferred his interest in it to her.
The appeal court recorded: “Initially, Jones acted to route the secret benefit that Asplin obtained to him, and to conceal the fact of his ownership. Over time, her interest in Medreport grew and that of Asplin and Kearns diminished.
“In due course, she came in effect to control the company. Throughout the conspiracy, she was the principal point of contact with DAS and dealt with members of its staff on a regular basis.
“She warned and cautioned her co-conspirators from attending Medreport in order to prevent any word of a link between them and DAS getting back to DAS and its parent companies.”
In 2011, “certain non-UK executives” in the DAS Group insisted upon tendering for expert reports and though Medreport failed in this process, its contract was still renewed.
“In 2012 the board of DAS decided to terminate the relationship. Medreport, led by Sally Jones, sued DAS. Ignorant of the conspiracy, DAS settled the case and paid a sum by way of compromise exceeding £800,000.”
Documents proving the secret ownership were finally acquired by DAS in 2015 as a result of a Norwich Pharmacal order.
The trial judge accepted that the scheme was not of her making but said she was vital in its realisation and continuation.
She claimed that, in the 2013 settlement agreement, DAS undertook not to take any civil or criminal proceedings against her.
Further, she argued that material obtained by the prosecution pursuant to the Norwich Pharmacal order should not have been admitted against her because she was not clearly identified to the issuing judge as a potential suspect.
HHJ Beddoe held there was nothing to suggest that Ms Jones had been led to believe that she would not be subject to criminal proceedings, either at the time of the settlement agreement or of the Norwich Pharmacal application, and the Court of Appeal agreed.
Giving the ruling of the court, Lord Justice Males said: “It is not obvious that Sally Jones ever believed that the settlement agreement included a promise by DAS not to bring criminal proceedings against her or that she acted on any such belief, whether by acceding to the Norwich Pharmacal application or at all, and she chose not to give evidence that she did.
“On the contrary, there is every reason to believe that she had no such belief and that the argument now deployed is essentially a legal construct.
“Hence the late stage at which this point emerged when, if there had been any substance in it, it would have been the first point to be taken. The fact that it was not taken until a late stage, after a galaxy of abuse of process arguments had already been deployed unsuccessfully, speaks volumes.”
Males LJ added that, even if she had such a belief, she would have been mistaken. The law was clear that any promise of immunity from criminal prosecution must be unequivocal and “on any view” the settlement agreement was not.
“We would, however, go further and conclude that [it] is concerned only with civil proceedings.”
The court said the Norwich Pharmacal application was clear that DAS suspected Ms Jones was part of the conspiracy and that DAS intended to use the documents produced, if they demonstrated Messrs Asplin and Kearns’ beneficial ownership of Medreport, to obtain redress for the wrongdoing, which could extend to criminal proceedings, including a private prosecution.
“There was nothing to say that Sally Jones would not be a defendant to such proceedings if the evidence obtained justified that course.”
Males LJ continued that there was “no evidence” that Ms Jones ever believed that there would be no criminal proceedings against her or that she had been misled by the terms of the Norwich Pharmacal application.
He added that, in any case, the Norwich Pharmacal order permitted the use of the documents produced in any criminal proceedings against her.
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