Singh & Ors v Habib & Anor [2011] EWCA Civ 599

Case No B3/2010/1933[2011] EWCA Civ 599
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM LEEDS COMBINED COURT
(HIS HONOUR JUDGE GRENFELL)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 12 April 2011
Before
THE PRESIDENT OF THE QUEEN’S BENCH DIVISION(SIR ANTHONY MAY)LORD JUSTICE SULLIVANLORD JUSTICE GROSS
Between
SINGH & ORSAppellantHABIB & ANRRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Mark Turner QC (instructed by Barlow Lyde and Gilbert LLP) appeared for Appellant.Mr Simon Anderson (instructed by KTP Solicitors) appeared for Respondent.
JudgmentSir Anthony May:
[1]This is, as it comes before this court, an appeal against a refusal on appeal from a district judge’s judgment against the decision of HHJ Grenfell sitting in the Leeds County Court, who refused to admit fresh evidence in a case which appears to me to be in its way a disturbing one and where the appellants’ allegation is that three claimants and the first defendant have conspired to invent a minor road traffic accident, which, as the appellant would have it, never took place. This accident is said to have taken place on 1 May 2008 when the first defendant was the driver of a vehicle on short-term hire and the claimants were three passengers in that car. The claim was that the first defendant failed to stop and collided with a stationary vehicle whose identity was never revealed and whose owner or driver never appeared before the court. The claim was that each of the three claimants suffered relatively minor but nevertheless personal injuries which they claimed entitled them to compensation. It was, according to their account, entirely a coincidence that later on on the same day the first defendant was involved in a further accident with the same vehicle, which did take place because the police were involved, he was arrested and evidence was given at the trial of the damage which that second accident caused to the vehicle.[2]The first defendant alleged driver was wholly uncooperative with his insurers and did not give evidence at the trial before DJ Barraclough, which took place on 28 May 2009 in Huddersfield when that district judge, in a careful judgment and not without considerable hesitation, found in favour of the claimants and awarded them damages of £1,750 or £1,500 respectively each. As I say, the first defendant took no part in the proceedings.[3]It is a notable feature of the district judge’s judgment and appears from the transcript of the evidence given before him, which we have seen, that the first and third claimants were regarded by him as unsatisfactory witnesses (he would not have found in favour of the claimants on their evidence alone) but he regarded the second claimant, a woman, as a credible witness whose evidence carried the claim. There was a claims company involved in these matters called Advanced Claims and the first, second and third claimants were cross-examined before DJ Barraclough as to the details of when the accident was reported to that company. It is again a feature of the accident that no police were called, that the person whose vehicle is said to have been hit was not called or involved and that the first defendant did not report the matter to his insurers, who are the second defendant/appellant and who now challenge whether the accident took place at all.[4]After the district judge had given judgment, the first defendant got in touch with the insurer’s solicitors and gave a statement to an enquiry agent saying that the alleged accident never took place and that the only accident in which he was involved on 1 May 2008 was that which took place later that day after which he was arrested. The enquiry agent was also told by a woman called Vicky, who was associated with the first defendant, that the first defendant had been promised £750 from, as the statement goes or appears to read:
“each of the claimants for making a claim in respect of an accident which never took place”
. So it was that the second defendant’s insurers made an application to be permitted to adduce fresh evidence before the circuit judge, HHJ Grenfell, on the appeal. They had another bit of evidence as well, which was that by then they had discovered through a search on Facebook on the internet that the first defendant’s telephone number was curiously the same as the telephone number of Advanced Claims, the claim company, and that obviously gave the insurers ground for suspicion.[5]It accordingly became material when it was that Advanced Claims had been contacted by the three claimants. Without putting too fine a point on it, the first and third claimants have now made and put before the courts statements in which they say in terms that they went to Advanced Claims immediately after the accident on the day of the accident and before 5:00 in the afternoon when that organisation closed for business, thereby of course putting this notification - if it took place – before the time of the accident, which undoubtedly did occur at some time around 7.00 or 7.30 that evening. The statements which they have made and which this court has seen have unsatisfactory features about them. One has a crossing-out as to whether all four of them went there or only three. A more unsatisfactory feature is that they really are not consistent with the evidence given in cross-examination by these two witnesses before DJ Barraclough during the trial when they were quite unclear as to precisely when they went to the claims organisation but gave evidence which could not be reconciled with the proposition that they had done so at a rather precise time on the very day of the accident. The application accordingly was to adduce the evidence of Mr Bellis, the enquiry agent, and to adduce the fresh evidence about the telephone number. The judge was obviously very concerned with this application and appeal and he said, among other things, that the district judge, despite his suspicions and once he had heard the evidence from the claimants, was impressed by the evidence of Miss Satnam Kaur, the second claimant, and HHJ Grenfell said that, reading the district judge’s judgment, had she not given evidence, in view of his comments about the other two claimants’ evidence, it seems unlikely that this claim would have succeeded. It was clearly something of a knife-edge affair.[6]The judge made reference to part 52.11(2)(b) of the Civil Procedure Rules (to which I will come in a moment) and made reference to the very well known case about admitting fresh evidence on appeal, Ladd v Marshall [1954] 1 WLR 1489. Having considered these matters he gave his decision in paragraph 12 of his judgment in the following terms, “In my judgment, as I have indicated to counsel, although I had the greatest concerns about this matter -- it is by no means the first time that suspicions and, indeed, in some cases actual fraud has arisen in this type of case -- it seems to me that the special grounds set out in Ladd v Marshall are not made out in the sense that the first defendant’s evidence is plainly not credible, and it seems unlikely that his evidence would be before the Court. There are matters that have been unearthed, as it were, post trial, which might have some influence on a judge re-hearing this matter. However, it seems to me that the authority of Ladd v Marshall is quite clear that there has to be compelling evidence in order to take the serious step of ordering a re-trial in a case like this, and despite the considerable concerns that I have over this matter, it seems to me that this is not an appropriate case for re-opening the claim. My principal reason for that is, and I return to DJ Barraclough’s judgment, that having seen a detailed cross-examination of the claimants, particularly of Miss Kaur, and because she survived that vigorous cross-examination and appeared to him to be an impressive witness, and because I have heard nothing that actually impugns her evidence, then it seems to me that the rest of his judgment falls into place and is not necessarily undermined completely by what I would call the additional and peripheral post judgment evidence as opposed to the first defendant’s evidence. As I say, despite those suspicions, I have come to the conclusion that it would not be right in the circumstances of this case to order a re-trial.” The application was refused and the appeal was dismissed.[7]The judge’s reference to the first defendant not being credible was a reference to the fact that he had made a statement which Mr Bellis received to the effect that the accident never happened. He subsequently withdrew that statement and accordingly, if one is judging the credibility of the first defendant in a vacuum, plainly he is unlikely to be regarded as a credible witness.[8]The matter comes before this court on appeal and we have to consider the basis upon which under the Civil Procedure Rules this court or any appeal court would admit fresh evidence. The rule to which

the judge referred, CPR rule 52.11(2), simply says:

“(2) Unless it orders otherwise, the appeal court will not receive – (a) oral evidence; or (b) evidence which was not before the lower court.”
[9]On the face of it that gives the court a wide discretion in particular cases but authority since the inception of the Civil Procedure Rules indicates that the considerations in Ladd v Marshall still have a strong influence on the way in which the courts should proceed. The so-called special grounds in Ladd v Marshall were:
“...first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”
[10]That was the position on Ladd v Marshall before the Civil Procedure Rules and since then, for instance, in the case of Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318, the Court of Appeal noted that while the provision to which I have referred in the Civil Procedure Rules did not retain the former requirement for special grounds, nevertheless the principles reflected in Ladd v Marshall remain relevant. They are matters which the Court of Appeal must consider in the exercise of its discretion when deciding to receive fresh evidence or not. In a slightly later case called Hamilton v Al Fayed [2001] EMLR 15 the Court of Appeal, over whom Lord Phillips MR presided, approved the guidance given in Hertfordshire Investments Ltd v Bubb, saying this: “We consider that under the new, as under the old, procedure special grounds must be shown to justify the introduction of fresh evidence on appeal. In a case such as this, which is governed by the transitional provisions, we do not consider that we are placed in the straightjacket of previous authority when considering whether such special grounds have been demonstrated. That question must be considered in the light of the overriding objective of the new CPR. The old cases will, nonetheless remain powerful persuasive authority, for they illustrate the attempts of the courts to strike a fair balance between the need for concluded litigation to be determinative of disputes and the desirability that the judicial process should achieve the right result. That task is one which accords with the overriding objective. I should say that in my judgment this court will be particularly acute to consider questions of admitting fresh evidence when the public interest in the prevention, so far as possible, of fraudulent road traffic claims comes before it.[11]Now what of the fresh evidence in this case? Mr Anderson submits that the first defendant’s credibility is shot to pieces and that the third limb of Ladd v Marshall simply is not satisfied in his case or in the case of the evidence concerning him. What is more, he submits that this was a suspicious case, so the insurers reckon from the start, and they could with reasonable diligence have winkled out anything he had to say on the subject in time for the trial before DJ Barraclough. As to the evidence about the telephone number this was, it is to be supposed, always available on the internet and on Facebook and that again is not evidence which could not, with reasonable diligence, have been obtained for use at the trial. What is more, he submits that HHJ Grenfell was correct to say that however this evidence may impinge on the evidence of the first and third claimants it does not affect the evidence of the second claimant, whose evidence it was that carried the day before the district judge.[12]In answer to that Mr Turner says, firstly, that the court is not concerned with the credibility of the first defendant but with the credibility of Mr Bellis, the enquiry agent, whose credibility is scarcely capable of being impugned and that the evidence is not to the effect that the first defendant would say positively:
“This accident never took place”
. His differing accounts given to the enquiry agent and subsequently are such as to cause grave doubts as to the credibility of any evidence in this case at all. Put that together, says Mr Turner, with the evidence about the telephone number, marking an apparent association between the first defendant and Advanced Claims, the claims company, and add to that the volunteered statements of the first and third claimants which appear to contradict evidence which they gave at trial and now important evidence as to the point in time at which they and others perhaps went to the claims company, and one has, says Mr Turner, admissible evidence which should be admitted and which would tip the finely balanced scales as they were before DJ Barraclough in the other direction.[13]As to the ability to get the evidence in time for the original trial, Mr Turner submits that the evidence of Mr Bellis of course simply was not available at the time and it would be a counsel of perfection to suppose that in the circumstances as they were before the original trial any solicitor conducting this relatively modest claim and being aware of the need to be proportionate as to the costs would set about finding out this telephone number, which at the time would be entirely speculative.[14]In my judgment and bearing in mind that the authority now tells us that whilst Ladd v Marshall considerations are important in these matters they are not to be taken as a straitjacket. Public interest, to say nothing else, satisfies me that this new evidence should be admitted. The evidence of Mr Bellis was not available at the time of the trial and is, so far as it goes, credible. I am persuaded that it would be a counsel of perfection to suppose that solicitors should have gone in search of a telephone number in the circumstances which pertained before the trial. Although it is not necessary to admit the fresh statements made by the two claimants, those statements are volunteered on this appeal on their behalf and will no doubt be available for cross-examination if there is to be a re-trial. It does seem to me, firstly, that this evidence should be admitted. Secondly, that it does have an important influence on one’s appreciation of the outcome of the proceedings, and that there are some quite outstanding features which, when the new evidence is put into them, are capable of appearing to tip the balance of DJ Barraclough’s judgment the other way.[15]The important features – and they are not the only ones that Mr Turner listed for us – include the following. Firstly, that the first defendant did not report the accident to his insurers and has not cooperated with them. Secondly, the first defendant undoubtedly did have an accident later on in the day of 1 May 2008 and a police constable gave evidence at the trial in this matter that the damage to the vehicle was consistent with that accident and that there was no damage visible which indicated that there had been an earlier accident. Thirdly, the first and third claimants were held by the district judge to have given unsatisfactory evidence at the trial and HHJ Grenfell understood the district judge to have regarded their evidence alone as incapable of carrying the claim. Fourthly, the district judge found that the second claimant’s evidence was credible and gave judgment on the basis of her evidence, but subsequent statements by the first and third claimants contradict what she says about going into the claims company after the accident, the first claimant now saying that they all went to the company on the day of the accident before 5.00. Fifthly, the claimants did not attend their general practitioner until six weeks after the supposed accident. Sixthly, after the trial the first defendant made a statement to an enquiry agent saying that the first accident had never happened. He has since withdrawn that statement but the fact that he has done all this is admissible in the mouth of Mr Bellis to cast grave doubt on the entire evidence in the case on behalf of the claimants. Seventhly, the first defendant gave as his telephone number the same number as that derived from the internet of the claims company. This is, in my judgment, significant new evidence and casts suspicion on the whole basis upon which these claims were advanced. Lastly, where there is – as I am confident there is – widespread concern about fraudulent cases of this kind, there is a strong public interest in a full investigation on all the evidence of this most unsatisfactory case.[16]Further, this was, as I have indicated, a very finely balanced judgment by the district judge and so in my view modest additional evidence indicating that the district judge’s result may have been wrong is admissible and persuasive in the other direction.[17]In total I regard this, as I said at the outset, as a deeply disturbing case which the public interest requires should be re-investigated on a new trial. Accordingly, I will admit the evidence, allow the appeal and direct that the matter is re-heard before a circuit judge who is not, I think, HHJ Grenfell. Lord Justice Sullivan:[18]I agree.

Lord Justice Gross:

[19]I also agree.

Order

Application granted

Cited in 5 later judgments