Francis & Ors v Wells & Anor [2007] EWCA Civ 1350

[2007] EWCA Civ 1350

Case No B2/2007/0677/CCRTF

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM OLDHAM COUNTY COURT

HIS HONOUR JUDGE TETLOW

5SF05380

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 19 December 2007

Before

LORD JUSTICE LAWS

LORD JUSTICE RIX

LORD JUSTICE LLOYD

Between

(1) TREVOR FRANCISClaimants / Respondents

(2) CECILIA HENRYRespondent

(3) TYRONE REEVESRespondent

(1) DONNA WELLSDefendant

(2) CHURCHILL INSURANCE COMPANY LIMITEDDefendant / Appellant

Paul Higgins (instructed by Keoghs LLP) for Appellant

James Boyd (instructed by Graham Coffey) for Respondents

Hearing Hearing dates: 3 December 2007

Judgment

[1]This appeal is against an order of His Honour Judge Tetlow made on 8 March 2007 for damages to be assessed in favour of the claimants against the second defendant, Churchill Insurance Company Limited, which is the insurer of the first defendant, Miss Wells. The claim was that the first, second and third claimants were injured in a road traffic accident as a result of the negligence of the first defendant. It was said that she was the driver, and the three claimants passengers in the vehicle driven by her at the time. The accident was said to have taken place on Friday 4 February 2005 at about 10.00 to 10.30pm in Greenside Street, Clayton, Manchester at its junction with Parkhouse Street. The accident consisted of a collision with another vehicle driven by a Mr Jose Senghore. Miss Wells drove out of Greenside Street, a minor road, into Parkhouse Street without proper care and attention and into the path of the car driven by Mr Senghore.

[2]The second defendant, appellant in this court, contends that the accident was staged or invented. It relies above all on the fact that the third claimant, Mr Tyrone Reeves, had been involved in two other accidents also involving Mr Senghore in the space of eleven months up to March 2005. It is said that this cannot have been by chance or truly accidental. The first of the three accidents is said to have taken place on 25 April 2004 with Mr Reeves as the driver of one car, the driver of the other car being a Mr Valentine Banjaky, and Mr Jose Senghore as a passenger in his car. The third took place on 2 March 2005 with Mr Reeves as driver and Mr Senghore as the driver of the other car. This is the starting point for the appellant’s case to the effect that the accident of 4 February 2005 did not happen, or not as an accident. This is supported by critical submissions as to the inconsistency and inadequacy of the evidence of each of the claimants and the first defendant. The judge recognised that the evidence of each of those four was inconsistent and in some respects inadequate and he recognised the oddity and suspicion of the circumstance of the three successive accidents involving the same two men. However, he held that the appellant’s case of fraud and conspiracy was not made out.

[3]In April 2005 the second defendant accepted liability and judgment was entered against the first defendant on 15 August 2005. At that stage the appellant did not know about the other accidents involving Mr Reeves and Mr Senghore. The last of the three accidents was discovered next, and the first of them very shortly before the trial. After the March 2005 accident had been discovered, and as a result of further enquiries, the appellant applied to be joined as a defendant to the proceedings, which it was by an order of 23 September 2005. At that point it served a rather basic defence but on 12 June 2006 permission was granted for the appellant to withdraw its acceptance of liability, the judgment against Miss Wells was set aside and the appellant amended its defence to refer to specific matters of concern. It denied the claim, and contended either that the accident had not taken place at all or that it was not an accident properly so called. In the meantime Churchill had paid Miss Wells for the damage to her car. Issue is now taken as regards the personal injury claims on behalf of all three claimants as opposed to the claim in respect of the damage to the car.

[4]Following this change of position the case was reallocated to the multitrack. It came to trial on 9 and 12 February 2007 and the judge gave a reserved judgment on 8 March. In the course of the two days of the trial oral evidence was given by all the claimants and by the first defendant. The second defendant only adduced some documentary evidence. Counsel for the appellant and for the claimants then made submissions, and Miss Wells, appearing in her own behalf, made some very brief submissions.

[5]The appellant’s case is that all the claimants and the first defendant were involved in a conspiracy to present a false claim, presumably with Mr Senghore as a party to the conspiracy as well.

[6]The inconsistencies in the evidence make it difficult to summarise briefly the claimants’ story as to how the late night journey came about, in the course of which the accident was said to have occurred. The appellant says that those inconsistencies are evidence of fabrication. Some of them certainly seem very striking.

[7]The first claimant, Mr Francis is a man of forty one who lives with Miss Wells, the first defendant, at Lockhart Close, Bellevue, Manchester. The second claimant, now aged thirty nine, is a friend of Miss Wells, living at Northolme Gardens, Burnage. The third claimant, Mr Reeves is older, now fifty eight, and living at Middleton Road, Manchester. He is interested in cars, and services cars for friends. He had agreed to service a Vauxhall Astra belonging to Miss Wells. It had been handed over to him for servicing on Thursday 3 February and he returned it to Miss Wells’ home on the evening of Friday 4 February, having serviced it. That is why he was at the home of the first claimant and Miss Wells on that evening without his own car. The second claimant had been having a difficult time; Miss Wells had invited her round for the evening, she said, to cheer her up, which is why she was there. She was also extremely tired both while at the house and during the car journey. One of the oddities of this aspect of the story is that Miss Wells said that she had proposed that they should go out for a meal because she wanted to tire the second claimant out so that she could get a good night’s sleep, but it is now common ground that she had to start work the following morning at 1.30am so to tire her out would not seem to have been the most sensible course.

[8]The car journey is said to have begun not before 9.30pm and possibly a bit later than that. It would have been necessary to take both Mr Reeves and Miss Henry back to their respective separate homes but the evidence was that there was also a suggestion of having a meal together and that during the journey it was decided to go for that purpose towards Ashton, north of central Manchester. At this point, it was said, the car was on Alan Turing Way and already past Ashton Old Road. There were significant inconsistencies and oddities in the evidence as to when the plan for taking a meal out was settled upon, and at what stage different members of the party knew about it.

[9]According to Mr Francis he told Miss Wells to turn right off Alan Turing Way before reaching Ashton New Road, for reasons as to which his evidence was also confused and unsatisfactory. At all events, she did turn right and he directed her through a number of minor backstreets in order to get back to Ashton Old Road. It was as a result of that that she came to be driving along Greenside Street and arrived at its junction with Parkhouse Street. She should have given way to any traffic on Parkhouse Street. The evidence was inconsistent as to whether or not she stopped at all, or slowed down, in order to see whether there was traffic on Parkhouse Street. In any event the evidence was that she drove forward into Parkhouse Street. At that point another vehicle coming from the right towards her along Parkhouse Street collided with her car, that vehicle being driven by Mr Senghore. After the collision Miss Wells and Mr Senghore exchanged details. Mr Reeves agreed with Mr Francis and Miss Wells to sort out the recovery of the car after the accident and he also spoke to the driver of the other car, Mr Senghore. Mr Senghore knew of a recovery firm based nearby and was intending to use that to recover his own car and suggested the same firm to Mr Reeves. Both cars were removed soon afterwards. There was a good deal of inconsistency as to what happened at and immediately before the time of the accident and a very striking lack of memory by the first claimant as to how he got home after it.

[10]The judge in his judgment summarised in turn the evidence of each witness. He noted inconsistencies between different statements by each witness, in particular between their respective witness statements and their oral evidence, and between different stages of their oral evidence. In particular he described Mr Francis as “not an impressive witness”, but said at paragraph 47 of his judgment that “the unsatisfactory nature of his evidence would only be support for a conspiracy if there was other cogent evidence thereof”. Miss Henry was also rather confused, according to the judge, who noted significant inconsistencies as between the facts which the medical report recorded her as having told to the doctor and her oral evidence. The judge said “whilst that might be exaggeration of symptoms for gain, it would not be evidence of the conspiracy charged. It would only be corroboration if one found such conspiracy.” That last is a sentence on which the appellant relies, among others, to say that the judge misdirected himself. He also said, in paragraph 49, “but again there could be an innocent explanation for all that”, but he does not indicate what that explanation is or might be.

[11]In relation to the first defendant the judge said that she was by and large consistent in her evidence although she got flummoxed as to why she would ask Miss Henry out to get her tired on this evening when she had to start work very early in the following morning. He also referred to her refusing to admit the obvious, namely that if she had looked to the right she would have seen the other car, which is consistent with her not having been there, but he said that “again that would [be] corroborative rather than probative of a conspiracy”. It does seem to me that the judge understates the oddity of the proposition that they would all go out so late in the evening for a meal when the second defendant had to start work at 1.30 in the morning.

[12]As for the third claimant, the judge also identified inconsistencies between his witness statement and his oral evidence, both about events up to and during the early part of the journey and about what happened at the time of the collision. Mr Reeves accepted that he had been involved in two other accidents where Mr Senghore had also been involved, and in relation to the accident in March 2005 both had been drivers. The appellant relies on the fact that, when he went to see his general practitioner in mid March, despite being asked about any other accidents, he did not mention that which was supposed to have taken place on 2 March 2005. The judge noted that Mr Reeves was prepared to trim his evidence as to how the accident occurred. He said that that is explicable because it was out of kilter with the others but that it would not support the second defendant’s case unless there were other cogent evidence: see paragraph 52.

[13]The judge then dealt with what he called the real point, namely the suggestive coincidence of three successive accidents involving Mr Reeves and Mr Senghore. At paragraphs 53 and 54 of his judgment he said this:

“53. The real point is that, firstly, Mr Senghore was a passenger in a car involved in an accident with a car driven by Tyrone in April 2004. In the light of subsequent events, it may be this was a contrived accident which would involve the other driver, Mr Banjaky, and also Tyrone. Mr Reeves accepts Mr Senghore was a passenger in the other car in this particular accident, but denies he knew him or that he knew that he was in the car. There is no further evidence on this point which emerged late. Secondly, Mr Senghore was the driver of the other car which collided with the first defendant’s car. It makes for suspicion of something between the third claimant and Mr Senghore, but not the others. I am told by reference to documents that Mr Senghore gave three different addresses at about the time of this accident, and had only acquired the car he was driving on the 1st February 2005. I agree that puts Mr Senghore in a bad light. It might lead to suspicion against Tyrone, but then what about the others? If Tyrone alone was involved, there is nothing concrete to say that the rest joined in. If Tyrone alone was involved, it suggests the others were in the first defendant’s car when the accident was staged. But it would be unlikely the others would be in a car knowing an accident was to happen by being hit alongside, amidships. That leaves, as Mr Higgins nailed his colours to the mast, that there was no-one in the car, i.e. the other three agreed to make a false claim. Alternatively, I suppose, Tyrone simply took the first defendant’s car and staged the accident and the rest joined in afterwards in making the claim. I do not know what happened as regards any claim by Mr Senghore and his passengers in that other car, therefore there is no help from that quarter. 54. Thirdly there is the March 2005 accident which might suggest clear collusion between Mr Senghore and the third claimant, Tyrone. That would not assist as regards the February 2005 accident.”

The appellant criticises in particular the last sentence of paragraph 54. Moreover, we were shown that the trial bundle included papers relating to claims for whiplash injury on the part of Mr Jose Senghore and three passengers in his car arising from this same incident, so in the last sentence of paragraph 53 the judge must have overlooked that evidence.

[14]The judge’s conclusion in the light of the evidence and of his consideration of the witnesses is set out in paragraph 55 as follows:

“55. I have sympathy with the second defendant’s suspicion that they have been had, and it may be they are correct, but a court can only go on the evidence which is sufficiently cogent. Whilst it would be tempting to say Tyrone conspired with Mr Senghore alone, it has to be that all conspired, either at the time or joined in thereafter. The other side of the coin is that, to all intents and purposes, the first defendant had a car worth some £10,000 or a bit less and she was paying finance on it and she was in a good job. One asks why she would join in for compensation for her car, and the inconvenience of being without it and for no personal injury compensation. As for the first claimant, who apparently had a job, why join in for about £2,000 worth of damages? As for the second claimant, why join in when she has got a job, a responsible one, as far as I can see, as she acts as a supervisor, again for a gain of about £2,000? If the first and second claimants are not a party, then likewise the third claimant would not be. I have suspicions; I can accept that I may have been had and the second defendant likewise, but I cannot bring myself to say, on the evidence, that it is cogent enough to mark these witnesses as being liars. It may have been otherwise with further evidence, but on the evidence before me there must be judgment for the three claimants for damages and the injuries would be, I imagine, as described by Dr Potter.”

[15]The appellant criticises the judge’s judgment principally for underestimating substantially the effect and significance of the alleged coincidence of the three accidents involving Mr Reeves and Mr Senghore. Further reliance is placed on the judge’s use in several places of the proposition that something which might support the appellant’s case is not enough in itself, suggesting that the judge was taking individual bits of evidence one by one rather than considering their effect overall in combination. In that context it is right to read an earlier passage relied on by the respondents at paragraph 44 of the judgment:

“44. In order to be satisfied about such a fraud being perpetrated, there needs to be cogent evidence. It is also necessary to bear in mind that in genuine road traffic accidents it is often the case that the opposing parties have entrenched beliefs of how the accident happened which do not lie in the same bed. Such beliefs are honestly held and yet, clearly, the foundations for such a belief may obviously not be there. The same applies between witnesses in a genuine accident even for the same side. It is also a fact that some witnesses are appalling but nonetheless truthful, and some witnesses are convincing and yet liars. The judge is driven to look for some independent piece of evidence as a pointer. It is not always there. It is also right to observe that a piece of evidence looked at in one light supports the defendant’s case; but in another, the claimant’s. Evidence is often a two edged sword. With those reminders to myself, it is sensible to start with what I can and do accept.”

[16]In itself what the judge says there is entirely apt and fair. It has to be noted, however, that this is a not a case in which the opposing parties have entrenched beliefs of how the accident happened. The inconsistencies were not only between different witnesses, all of whom were essentially in the same camp, but as much as anything within the evidence of each separate witness, showing the very opposite of entrenched views on the part of each witness. Furthermore, Mr Higgins for the appellant submits in particular that the independent and cogent piece of evidence which should serve as a pointer towards conspiracy is Mr Reeves’ involvement in the three successive accidents, especially as the judge said of the first accident at paragraph 55 that “it may be this was a contrived accident which would involve the other driver Mr Banjaky and also Mr Reeves” and of the third accident that it “might suggest clear collusion between Mr Senghore and Mr Reeves”. There is considerable force in that submission.

[17]The judge was correct to say that all four parties to this claim had to be in on the conspiracy. It could not be presented as a private conspiracy simply between Mr Reeves and Mr Senghore. As Mr Higgins put it at the end of his submission to the judge, “Miss Wells gave her car to Mr Reeves for the purposes of an accident and the other two have just rode in behind on the basis that it is just easy money”. Mr Higgins went on to emphasise that it was for the claimants to prove on the balance of probability that the collision occurred, as a result of the first defendant’s negligence, and that each had suffered as a result.

[18]Permission to appeal was granted by Lord Justice Hughes on the basis that the appeal was arguable on these four propositions: i) first, that it was not possible that the three successive accidents involving Reeves and Senghore could have been genuine; ii) secondly, that the judge was wrong to say that the circumstances of the third accident could not assist in weighing the claim of fraud in respect of the second; iii) thirdly, that, if the first proposition were accepted, there can be no honest explanation for the accident sued on; iv) fourthly, that it is therefore wrong to say that evidence showing Mr Reeves to be fraudulent could not have an impact on the claims by Mr Francis and Miss Henry.

[19]On behalf of the respondents it is said that the judge has found that the claimants and Miss Wells were not lying, they were not making the whole thing up, so that it follows that he accepted enough of their evidence to be satisfied that(a) a collision occurred as described,

(b) it happened by accident,

(d) each of the first, second and third claimants suffered injury as a result.

[20]It can fairly be said that the judge did not make it clear what facts he found to be proved, so that the basis of his finding in favour of the claimants is inferential. At paragraph 45 he set out matters that he could and did accept which were very basic propositions about the identity of and relationships between the parties and the working patterns of Miss Wells and Miss Henry, and he concluded by saying that it could not be said to be improbable that all four should meet up on this Friday evening and set off together. Mr Higgins submitted that, while that is valid so far as it goes, it does not deal with the improbability of the group including Miss Henry setting off not long before 10.00pm on a Friday evening for a drive of some considerable distance for the purpose, apparently, of having a meal together when Miss Henry had to be at work by 1.30 the following morning.

[21]The judge then referred to the variations in the versions of events which happened at the house before departure and what happened on the way, before the accident. Those variations he regarded as either potentially suspicious or as consistent with ordinary variation of recollection. He then came to the comments which I have summarised on the four respective witnesses, having in the early part of his judgment reviewed their evidence in greater detail. Having done that he concluded his judgment with paragraphs 53 to 55 which I have set out above.

[22]This is not, therefore, one of those cases in which the judge, having heard the witnesses give evidence and tested their reliability, concludes, in the light of his observation of the witnesses as well as of the detail of what they say, that he accepts them as essentially truthful, and states what facts he finds to have been proved by their evidence. He was more or less seriously critical of the evidence of each of them. Reading his judgment, one is led to expect that, after his review of the witnesses and their stories, he would at some point, as it were, step back, take a view of the whole body of the evidence and make findings as to what facts he held to be established, and otherwise. As Mr Higgins pointed out in his submissions, successively in paragraphs 47, 49, 51, 52 and 53, the judge says of a particular feature of the evidence that it would only be corroborative of the case of conspiracy, or that it would only support that case, if there were other evidence to prove it or if it was proved by other evidence. In addition there is the comment at paragraph 54 that even if the March 2005 accident was collusive that would have no bearing on the evidence as to the February 2005 accident. That approach tends to isolate and neutralise the effect of individual features of the evidence, and at no point did the judge address in terms the combined effect of the various factors. Nor did he decide between the various different versions of events given by the several witnesses, as to what had happened as a matter of fact on the evening of 4 February 2005.

[23]There was some debate before us about the burden of proof. Clearly the burden is on the claimants to prove that the collision occurred, by the negligence of Miss Wells, and that each claimant suffered damage. Unless that is proved on the balance of probability, the claim of any particular claimant cannot succeed. Even apart from the coincidence of three events involving the third claimant and Mr Senghore there would still be plenty of material on the basis of which to question the reliability of the respective claimants, though no obvious basis for saying that any of them had deliberately invented their story. The judge might dismiss a claim, even in those circumstances, as not proved on the balance of probabilities but equally he might hold that, despite a good deal of inconsistency and internal conflict, there was enough common ground between the parties to find that the case was proved. The legal burden then remains on each claimant, but with the allegation of fraud by way of defence an evidential burden would arise on the defendant, and a substantial burden at that.

[24]In his well focused skeleton argument and oral submissions, Mr Boyd for the respondents reminded us, of course, that the judge had the opportunity which we do not have, not only to consider what each witness said but how they said it and what their demeanour was in the witness box, so as to enable him to form a view as to the credibility of each of the four protagonists in order to assist him in reaching his conclusions. Had this been a case in which the judge, despite whatever variations and diversions there were in the course of the evidence, had held that each of the claimants was essentially reliable and honest and had made it clear which facts he found to be proved in the light of the evidence given, that submission on the part of Mr Boyd would have more force than it does in the instant case. The judge reviewed the evidence of each witness and found it more or less wanting. However, at the end he weighed in the scales on the one hand the contention on behalf of the appellant that all four parties were acting together in putting forward a fraudulent claim, supported substantially as regards Mr Reeves by the circumstances of the other two accidents but only indirectly if at all as regards Mr Francis and Miss Henry. That lay on one side of the account, so to speak, and on the other lay the improbability, as the judge considered it, that Mr Francis or Miss Henry or Miss Wells would have a sufficient motive to join in such a plot. Towards the end of his judgment in paragraph 55, as I have quoted already, he says “I cannot bring myself to say, on the evidence, that it is cogent enough to mark these witnesses as liars”.

[25]His Honour Judge Tetlow, as Designated Civil Judge for Outer Manchester, is a very experienced judge but, with all due respect to him, it seems to me that on this occasion he failed to take a crucial step in his assessment of the evidence. He should have looked at it as a whole and considered whether the combined effect of the striking coincidence of three incidents involving Mr Reeves and Mr Senghore, and all the difficulties and inconsistencies in the evidence of the four witnesses, was sufficient, as a whole, to satisfy him that the claim was not genuine, or at least to show that the claimants’ cases were not proved on the balance of probability. In so doing he should also have addressed expressly the question of what facts he found to have been made out by the evidence. As I see it, his conclusion in favour of the claimants is the result of reasoning and analysis rather than of assessment in the light of the content and the manner of their evidence. He did not at any point step back from the detail of the evidence and review the impression that it left on him as a whole. Rather, in the course of reviewing the evidence of the successive witnesses, he dealt with their evidence one by one and, in turn, relegated each of the serious problems in the claimants’ evidence to a subsidiary role which in his view was potentially corroborative but not in itself probative. That suggested antithesis is, in itself, odd, to say the least, and suggests a misdirection, in that evidence which is corroborative must surely be probative or it is of no value at all. Moreover it seems to me that the judge misdirected himself specifically when saying that the circumstances of the March 2005 accident could have no bearing on the view that he took of the truth or otherwise of the allegations in respect of the February 2005 accident.

[26]I also consider, with respect, that the judge was wrong to proceed straight from the proposition that the defendant had not made out its claim of an invented accident to the conclusion that the claimants had proved their claims on the balance of probability. This may be only a theoretical distinction but, even if the case was not one of fabrication, it remained for the claimants to make out their case of negligence, and damage resulting from it, and in the absence of findings of fact which show the basis on which the judge found in favour of the claimants it is not clear how he reached that conclusion. By itself I might not regard that last point as sufficient but, taken together with what I regard as misdirections in the course of coming to the conclusion that the case of conspiracy was not made out, it seems to me that the judge has not dealt properly with the issues presented by the rival contentions and arising from the unsatisfactory nature of the evidence put forward by the claimants and the first defendant.

[27]It may be that, if he had addressed the overall effect of the evidence, the factors to which he referred in paragraph 55 against the idea of a conspiracy involving all four parties would still have been sufficient to lead him to the conclusion that the claim was not invented, and he might also have been satisfied that, despite the inadequacies of the claimants’ evidence, there was enough there that was reliable to enable him to find facts on the basis of which he could hold that the claims were proved on the balance of probability. But it seems to me, with respect, that the judge’s reasoning is not sufficient to justify those conclusions as the judgment stands.

[28]For those reasons it seems to me that the issues in the case have not been properly determined in the judge’s judgment. It follows that the appeal should be allowed and the case be remitted for a retrial, before a judge other than Judge Tetlow. The parties should apply to a District Judge for, and if possible agree, case management directions as to what course should be followed in relation to the case, including where and by whom it should be tried. For those reasons and with that outcome I would allow this appeal.

[29]I agree

[30]I also agree. Francis and others v Wells and Churchill Insurance Appeal B2 2007/0677 Form of order The Second Defendant’s appeal is allowed The order of His Honour Judge Tetlow dated 8 March 2007 is set aside The case is remitted to the Salford County Court for trial by a judge other than HH Judge Tetlow All parties shall, by 4pm on 18 January 2008, file at court an agreed list of directions to progress the matter to a retrial. If the parties cannot agree on the form of such an order then the matter shall be listed for directions on the first available date after 25 January 2008 with an estimated length of hearing of 30 minutes. The costs of the appeal shall be costs in the case The costs of the first trial shall be reserved 19 December 2007

Francis & Ors v Wells & Anor [2007] EWCA Civ 1350

Cited in 5 later judgments