Jolghazi & Anor v Ali & Anor [2005] EWCA Civ 1101

Case No B3/2004/1784[2005] EWCA Civ 1101
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE COWELL)
Venue Royal Courts of JusticeDate Tuesday, 12th July 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE RIX
JOLGHAZI & ANR
Applicants/Claimants
-v-
ALI & ANR
Respondents/Defendants
(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR MARK TWOMEY (instructed by Lock & Marlborough) appeared on behalf of the Applicants
The Respondents did not appear and were not represented
J U D G M E N T
Between
Jolghazi & AnorAppellantAli & AnorRespondent

LORD JUSTICE RIX:

[1]This is an application for permission to appeal made on behalf of Mr Mahmoud and Mrs Zahra Jolghazi. Perhaps Mrs Jolghazi will forgive me if I refer to her in that way, as Mrs Jolghazi, because I think it may be the case that I should properly refer to her as Zahra Mojabi, but at any rate it will be of great convenience to me, which I hope she will forgive me for, if I refer to the two applicants in this case as Mr and Mrs Jolghazi, which is what in truth they were: man and wife.[2]The application has been made on their behalf by Mr Mark Twomey, acting pro bono, and I am very grateful, as I am sure they must be too, for his great assistance. The submissions he makes, to some extent, track the grounds of appeal and skeleton arguments put before the court by Mr and Mrs Jolghazi, acting as litigants in person, and I shall seek to explain in this judgment where they depart from previous submissions. I think I should state also that, whereas the judgment reveals that Mr Jolghazi, however imperfect his English might be, has sufficient English to have been able to give his evidence at trial without an interpreter, Mrs Jolghazi needed an interpreter at trial.[3]The judgment in respect of which the application is made is that of HHJ Cowell, given in the Central London County Court on 2nd July 2004. The Jolghazis' claim arises out of a road traffic accident which they suffered on 26th February 1997 in London, when the driver of the other car performed a careless U-turn and collided with them. The description of the accident in those terms does not suggest that, in traffic accident terms, the accident was a particularly serious one. Both cars were able to drive away from the scene, but it led to a complaint of whiplash and back injuries to both applicants, which was the subject matter of the judge's judgment.[4]The judge pointed out at the beginning of his judgment that, as trial judge, he faced a number of difficulties in the case, one of which was that there was no medical note of any injury to Mr Jolghazi until a GP's note of 27th November 1997, that is nine months after the accident, which read:
"Back pain long standing since RTA. Ref physio."
[5]Also, the medical experts disagreed, but that perhaps is not unusual in trials of this kind involving medical evidence. He also referred to the fact that, unfortunately, because of delays in obtaining all the evidence required at trial and of the difficulties of the attendance of expert witnesses, the trial had had to be adjourned, and although it began towards the end of April 2003 and there was a further hearing in November 2003, it only came to its conclusion at the beginning of July 2004.[6]There was evidence from orthopaedic consultants and also from psychiatric experts on behalf of both parties -- I should have said that liability was admitted and that the trial was solely on the question of quantum. The judge preferred the evidence of the defendant's experts, both the psychiatric and the orthopaedic expert, to those of the claimants, and it would be difficult for this court to say that he was not entitled to do.[7]The upshot of his judgment was that he did accept that both claimants had suffered some injury as a result of the road traffic accident: in both cases soft tissue injury, albeit that in Mr Jolghazi's case he considered that it was very minor and did not last very long before it settled down. In his case he was willing to award Mr Jolghazi only £1,500 in general damages; whereas in the case of Mrs Jolghazi, he had no doubt that she had suffered a form of whiplash injury which had caused her more long-lasting pain and symptoms, and he awarded her £5,000 in general damages.[8]Although, as I have said, he found that Mr Jolghazi's injury had settled down very quickly, his finding in relation to Mrs Jolghazi was that, although it had not been wholly remedied by the time she visited a consultant orthopaedic surgeon, Mr Thilagarajah, in April 1998, it was then well on the way to recovery. This finding in his case, by reference both to Mr Thilagarajah's report relating to April 1998 and to a physiotherapist's report of January 1998 and to a comment in her general practitioner's notes relating to June 1998, was, as I have previously expressed it, that by that time she was "well on the way to recovery".[9]In these respects although, broadly speaking, he preferred the evidence of the defendants' orthopaedic expert, Mr Beverly, to the Jolghazi's orthopaedic expert, Miss Ang, he did not entirely accept Mr Beverly's evidence, which was to the effect that Mr Jolghazi had suffered no injury at all and that Mrs Jolghazi had suffered injury of lesser proportions than that which the judge found.[10]Each of Mr Jolghazi and Mrs Jolghazi make their applications upon different grounds. I will deal with Mr Jolghazi first. The judge in his case found that, first of all, Mr Jolghazi was an unreliable -- indeed he said most unreliable -- witness, who often changed his evidence in the course of giving it, even to the extent of contradicting himself. He also had, in his case, the assistance of a video taken on two days in June 2001, which showed that his demeanour was very different in court from what appeared upon the video.[11]As to the video, he said that it showed him doing, for example, a perfectly normal bend to the ground in order to pick up a coin or something he had dropped, and, for a short period, it showed him breaking into a general run and that it was very greatly different from what he had told Miss Ang in June 2001, which is in the same month as the video was taken, when he complained that he was only able to walk about 50 yards and that he found climbing stairs very difficult and was only able to take about three steps at a time. So the judge had well-founded grounds, in my judgment, for doubting the reliability of Mr Jolghazi's evidence.[12]In addition, the judge was obviously influenced by the fact that there was no reference in Mr Jolghazi's general practitioner's notes until November 1997 of any injury or pain having been caused by the road traffic accident.[13]This contrasts with the position of Mrs Jolghazi, who, on the evening of the accident, was in such pain that early in the hours, if I have the detail of that right, of the next morning, 27th February 2002, Mr Jolghazi had to take her to the hospital: so that in Mrs Jolghazi's case, as opposed to Mr Jolghazi's case, the evidence of immediate pain and injury was well-based.[14]One of the grounds of appeal in Mr Jolghazi's case is that the judge overlooked an entry in the general practitioner's notes of 27th February, relating to abdominal pain. In my judgment, the judge did not overlook that: he referred expressly in his judgment to the GP's entry of 27th February by reference to that date, although he did not state what the entry said, other than that it was not a complaint about road traffic pain or a reference to the accident which had happened on only the previous day. It was unfortunately the case that Mr Jolghazi at that time had been diagnosed with a lymphoma of the stomach, a form of cancer, for which he was receiving physiotherapy, so it would not at all be surprising that Mr Jolghazi did complain of abdominal pain.[15]Whether, in truth, he even visited his GP on 27th February may be doubtful, because the entry of that date states "DNA", which stands for "Did Not Attend", and there is a reference to the hospital, and abdominal pain which would be entirely consistent with the treatment for the cancer from which Mr Jolghazi was then suffering. Fortunately his cancer went into remission. I therefore see no realistic prospect of success upon this ground of appeal.[16]The judge also relied, in rejecting Mr Jolghazi's essential case, upon reports of his visits to Mr Thilagarajah in April 1998, and to Miss Ang in July 1999, which he said were entirely consistent with an early recovery from such slight injury as he may have suffered.[17]The main ground of appeal, in effect, in Mr Jolghazi's case is what is said to have been a misinterpretation of his orthopaedic expert's, Miss Ang's, evidence at trial. The judge described the relevant part of her evidence for these purposes as follows, at paragraph 48 of his judgment. He was referring to the central issue at trial between the orthopaedic experts, which was that subsequent acquired evidence from an MRI scan -- the scan was taken in I think April 2002 -- showed, in the view of Miss Ang, a deteriorating degenerative condition which pre-existed, although it may have become worse with age, but had been turned from being asymptomatic to being symptomatic of pain as a result of the accident.[18]In the light of her being questioned on this essential part of her evidence,

the judge said this, at paragraph 48:

"48. But the evidence ultimately of Miss Ang was to the effect that it was no more than of a possibility of about 30% and it certainly was not a probability. I pay tribute to Mr Power [he was the Jolghazis' counsel at trial], who made a very right and proper concession that on the basis of that evidence he was really unable to invite me to conclude that the deterioration was as a result of the accident. I would like to make it clear that that was a conclusion that I had come to even before he made it clear in the opening paragraph of his written submissions of today that he was unable to argue the point, but it seems to me that was very right and proper."
[19]Now, today, Mr Twomey relies, as had Mr Jolghazi's own grounds of appeal and his written skeleton argument prepared for today, upon new evidence, for which permission would be required at an appeal, from Miss Ang in the form of a letter dated 13th July 2004, in which she seeks to say that the 30 per cent figure which she appears to accept was properly relied upon as a figure by counsel and the judge was in truth a figure out of 50 per cent, and therefore represented a probability of 60 per cent out of 100 per cent. Apparently she was seeking to say that 30 per cent out of 50 per cent of Mr Jolghazi's back pain was due to the accident, and 20 per cent out of 50 per cent, or the balance perhaps of 40 per cent out of 100 per cent, was due to merely degenerative changes.[20]It is not easy, however, to see why she should have been referring to a percentage out of 50 per cent rather than 100 per cent. We do not have a transcript of the evidence. It is quite clear that counsel at trial, Mr Jolghazi's own counsel, understood her evidence as not relating to a balance of probability, but only to a less than probable possibility. That was the judge's independent view of the matter and, for myself, I do not see how one can go behind that. I say that even though Mr Twomey has helpfully referred me to another letter of Miss Ang which was before the judge at trial, this one dated 9th October 2001, in which she seeks to say that, on the balance of probability his symptoms were 50 per cent due to the accident and 30 per cent due to pre-existing degenerative changes.[21]It is difficult, however, to tie up those percentages with the percentages given in her new letter. It seems to me that her new letter in no way meets the Ladd v Marshall test for new evidence. It is not a helpful gloss upon the evidence that was before the judge and is not a realistic ground of appeal.[22]Lastly, Mr Jolghazi relies upon the way in which the judge dealt with the MRI scan in his case, but in my judgment the judge dealt with it entirely satisfactorily in paragraphs 31, 32, 34, 35 and 36 of his judgment; namely he rejected the evidence of Miss Ang, in part for the reasons which I have explained in this judgment already, that the accident made pre-existing changes symptomatic, and he in essence accepted Mr Beverly's evidence that the MRI scan, which in any event was taken more than five years after the accident, merely showed degenerative changes which were the ordinary process of ageing, and which, in themselves, not only did not help Mr Jolghazi's case, but prejudiced it in demonstrating no sign of any specific injury.[23]Therefore, for all these reasons, it seems to me that the judge was perfectly entitled to reject Mr Jolghazi's evidence in its essence, to prefer the expert witnesses of the defence to that of Mr Jolghazi, and to rely upon the most contemporaneous subsequent reports upon Mr Jolghazi of April 1998 and July 1999, which I have mentioned, as well, of course, upon the absence of any reference to an injury caused by the accident until November 1997, all of which, in my judgment, makes the judge's decision in the case of Mr Jolghazi one that he was entirely entitled to arrive at and one in respect of which it seems to me there is no real prospect of any appeal succeeding. Therefore, in Mr Jolghazi's case, I refuse his application for permission to appeal.[24]The case of Mrs Jolghazi I will say straightway however, it seems to me, is different. In her case, the judge accepted her essential evidence of injury and indeed severe pain arising immediately from and after the accident and, of course, he had good reason to do so. He made no finding in her case that she was an unreliable witness, or one who was prone to exaggeration. There is a passing reference to "exaggeration by the claimants" in the plural in paragraph 48 of his judgment, but the whole of the rest of paragraph 48 seems to me to relate to Mr Jolghazi rather than to Mrs Jolghazi, and there is no other reference in the judgment to Mrs Jolghazi as an exaggerator, although there certainly is in the case of Mr Jolghazi. It seems to me that I should not regard the judge as having found adversely to Mrs Jolghazi as a witness.[25]The judge's reasoning in the case of Mrs Jolghazi, as I have pointed out at an earlier stage of this judgment, was essentially that by June 1998 she was, if not entirely recovered, well on the way to recovery. On the material that I have read for myself in this case, it seems to me the judge was perfectly entitled to say that.[26]But although he referred to the report of Miss Ang of July 1999 in the case of Mr Jolghazi, he does not refer to her report in the case of Mrs Jolghazi. A copy of that report has been handed to me by Mr Twomey, and what it says, in essence, is that, although the neck whiplash injury appeared to be partially settling down and not to be causing Mrs Jolghazi much trouble any more, her lower back pain, which Mrs Jolghazi also referred back to the accident, was still:
"... extremely troublesome and has limited her activity in a rather worrying way ... I do not think this back pain is going to settle down easily."
[27]It seems to me therefore that it may be that, as Mr Twomey submits, the case of Mrs Jolghazi either did not receive from the judge as full a consideration as the case of Mr Jolghazi, possibly because of the graver difficulties in the case of the evidence for Mr Jolghazi, and also possibly because the judge found it easier in her case to say that her injury was established; but for whatever reason, the judge appears really to have treated Mrs Jolghazi as being over the effects of the accident by the summer of 1998 without mentioning Miss Ang's July 1999 report, which suggests that the more optimistic prognosis of Mr Thilagarajah had not been fulfilled in her case.[28]It is possible, of course, that by July 1999 Mrs Jolghazi's difficulties were being prolonged or exacerbated or renewed by the second pregnancy which she had just gone through, and I think that in July 1999 she was not long after producing her second baby. But the judge does not go into that possibility in detail, other than in his conclusion that the deterioration which he certainly accepts came in 2001 or 2002 was due to other causes, one of which might be pregnancy, one of which he mentions were two falls.[29]It does seem to me that there is sufficient force in Mr Twomey's point to be able to say that there is some real prospect of an appeal succeeding in Mrs Jolghazi's case. What the extent of such a prospect of success on appeal might be is quite another matter. It may not, as a real prospect, extend as far as Mrs Jolghazi might hope, or as far as Mrs Jolghazi put her case at trial, but it does seem to me that there is certainly room for a real prospect that the judge set his general damages too low at £5,000, especially in the light of the fact that in paragraph 47 of his judgment, in Mrs Jolghazi's case, he considered an award of one year's loss of earnings from 1st July 1998 onwards.[30]Therefore, in Mrs Jolghazi's case, I will give permission to appeal. I have considered whether this ground of appeal, as explained to me by Mr Twomey this morning, is properly covered in the grounds of appeal. It seems to me that it is, if I may put it this way, just about adequately covered without a wholesale amendment in ground 2, which is a reference to the judge's reliance upon the general practitioner's comments in June 1998 that Mrs Jolghazi was fine at that time. It has been submitted that the judge was wrong to rely upon that, because that was a reference to her psychological health rather than to her physical health. I have doubts about that submission in itself. At paragraph 43 of his judgment, the judge expressly quoted the full comment "feels good now and denies depression?", which illustrated the context of the remark, and the judge expressly went on to say "one must not put too much weight on that", whilst going on to say that it seemed to him to fit with the general impression that he had from other evidence relating to the summer of 1998.[31]I have already made the comment that, as of the summer of 1998, the judge's way of putting the matter in terms of "well on the way to recovery" appeared to have much to justify it. Therefore I do not regard the specific way in which ground 2 is put as bearing the weight of the appeal for which I am now giving permission in the case of Mrs Jolghazi. But I do consider that, in the light of this permission, the grounds of appeal in her case should be readdressed and amended in order to put the way in which Mr Twomey has put it today -- and based upon which I have accepted his submissions -- properly before the court by way of amendment, and I will permit such an amendment to be made and give directions for it.[32]Finally, I should deal with the application for an extension of time made by both applicants for the purposes of this hearing. The notice of appeal was filed with the Civil Appeal Office 28 days late, but it was filed within time with the local court. It seems to me that this is another of those cases in which a litigant in person has gone wrong as to where the notice of appeal should properly be filed. I have been prepared to deal with Mr Jolghazi's application on its merits rather than by reference to a refusal in his case to an extension of time. I am prepared to extend the time in both cases and, for the reasons I have given, I refuse Mr Jolghazi's application and allow Mrs Jolghazi's.

Order

Application by Mr Jolghazi for permission to appeal is refused. Application by Mrs Jolghazi for permission to appeal is allowed.