Aviva Insurance Ltd v Nazir & Anor [2018] EWHC 1296 (QB)

Case No D95LS003[2018] EWHC 1296 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue The Combined Court Centre, Oxford Row, LeedsDate 23 May 2018
Before
His Honour Judge Gosnell sitting as a Deputy Judge of the High Court
Between
Aviva Insurance LimitedClaimantMr Shamriz Nazir (1)DefendantsMr Mohammed Junaid Ali (2)Defendant
Mr Paul Higgins (instructed by Horwich Farrelly Solicitors) for ClaimantMr Kristian Cavanagh (instructed by M &M Solicitors) for First DefendantMiss Laura Nelson (instructed by M & M Solicitors) for Second DefendantHearing Hearing dates: 22 nd and 23 rd May 2018
JudgmentHis Honour Judge Gosnell:
[1]These proceedings are brought by the Claimant against the Defendants for contempt of court. If the contempts are proved the Claimant seeks the committal of the Defendants. I gave permission for these proceedings to be brought on 17th November 2017 after a hearing in the Bradford District Registry in proceedings numbered D00BD663. These proceedings were issued on 13th December 2017 and were accompanied by a Statement of the Claimant’s grounds for bringing the committal application which will be attached to this Judgment.[2]The factual background The Claimant is an insurance company and in July 2012 agreed to insure a Ford Cougar motor vehicle registration number T307 KRL. Shortly after the inception of the policy it was notified that the vehicle had been involved in a collision on 19th September 2012. On that date the First Defendant was the driver of and the Second Defendant a passenger in a Seat Alhambra motor vehicle registration number C12 EKO. A collision occurred between this vehicle and the Ford Cougar insured by the Claimant on Bowling Back Lane in Bradford, West Yorkshire. The incident was described by both Defendants in a claim form prepared on their behalf as a “road traffic accident” and it was said in their Particulars of Claim that the First Defendant “was unable to prevent the collision occurring”. Both documents were endorsed with a statement of truth signed by the Defendants. The Claimant’s case is this alleged “accident” was deliberately manufactured with the knowledge of the Defendants to enable them to make a dishonest claim for compensation.[3]The Defendants made claims against the Claimant for damages for personal injury, physiotherapy costs, credit hire charges and recovery and storage charges. Proceedings were issued in the Bradford County Court under claim number B78YM754 against the alleged driver of the Ford Cougar, David Sulc and the Claimants as insurers of Mr Sulc. Both Defendants were examined by a Dr Pearce who produced a medical report to support their claim. It transpired however that West Yorkshire Police were pursuing other enquires adjacent to the accident location and were able to produce CCTV footage of the prelude to and happening of the accident. The Claimant will say that the CCTV footage will prove that this is a manufactured and not a genuine accident. The claims were eventually struck out.[4]Both Defendants deny that this was a contrived accident and maintain it was genuine. On the date in question they were looking for a scrapyard which the First Defendant had been told was on Bowling Back Lane in order to purchase a second-hand starter motor for his Seat Alhambra. The Second Defendant, who was only fifteen years of age at the time, went along for the ride.[5]The Legal Framework In this application for committal the Claimant therefore alleges two forms of contempt, each of which is technically distinct in law, although in this case they overlap. First it alleges interference, or attempted interference, with the due administration of justice by the defendant’s issuing a claim for damages arising out of the collision on 19th September 2012 which claim they knew to be dishonest and deliberately manufactured. That form of contempt requires, in this case, the Claimant to prove that:(i) the defendants deliberately set out to deceive the Claimant by falsely claiming that they were injured in a genuine accident when they had conspired with others to create it;(ii) the defendants must have intended thereby to interfere with the administration of justice;(iii) the conduct complained of must have had a tendency to interfere with the administration of justice. For examples of contempts of this nature, see Airbus Operations Ltd v Roberts [2012] EWHC 3631 (Admin), and Homes for Haringey v Fari[2013] EWHC 3477 (QB).[6]The second form of contempt alleged in this case derives from CPR 32.14(1) which provides:
“(1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”
[7]CPR part 22 provides that among the documents which must be verified by a statement of truth are a statement of case which include a Claim form and Particulars of Claim. The contempts alleged in this case include examples of false statements in both such documents.[8]In relation to this form of contempt it must be proved that:(i) the statement in question was false;(ii) the statement has, or if persisted in would be likely to have, interfered with the course of justice in some material respect;(iii) at the time it was made the maker of the statement (a) had no honest belief in the truth of the statement; and (b) knew of its likelihood to interfere with the course of justice. These principles are well established on the authorities, and were confirmed (for example) in AXA Insurance UK plc v Rossiter[2013] EWHC 3805 (QB).[9]The standard of proof in respect of each of the elements of contempt is, of course, proof beyond reasonable doubt: the criminal standard of proof. The burden of proof is on the party who bring the proceedings for contempt, in this case the Claimant.[10]Whilst there are three allegations against each Defendant they all relate to the same allegation: that the Defendants took part in a staged accident and then dishonestly made a personal injury claim knowing that their claim was not a genuine one. The Claimant must satisfy the court beyond reasonable doubt that this factual assertion is proved in relation to each Defendant in order to succeed against that particular Defendant.[11]The CCTV evidence: It transpired that West Yorkshire Police were conducting some unrelated surveillance in the area and were able to release their footage to the Claimant. The camera is situated in Stamford Street pointing down the street to where Stamford Street meets Bowling Back Lane which crosses at right angles to it. Directly across the road is Hammerton Street which has two exits, one at a slight angle directly across from Stamford Street. The collision occurred when a Ford Cougar emerged from Hammerton Street and struck the First Defendant’s Seat Alhambra on the front nearside wing as it passed the Ford Cougar on Bowling Back Lane.[12]The footage starts at 6.07.35 pm when the Seat Alhambra is seen driving along Bowling Back Lane crossing past Stamford Street travelling from right to left on camera. During the course of the recording until the collision at 6.29.39 pm the Seat crosses in front of Stamford Street no less than eleven times going one way and then the other. The Ford Cougar is first seen at 6.12.06 driving along Bowling Back Lane. Over the next 18 minutes it is seen several times either on Hammerton Street emerging into Bowling Back Lane, or on Stamford Street. A man is seen standing on the corner of Stamford Street, looking right and left as if seeking out a particular vehicle, often on the phone and gesticulating with his hands. A silver Peugeot car arrives and appears on a number of occasions and at some point, the man standing on the corner is seen to get into the Silver Peugeot. Meanwhile the Ford Cougar keeps returning to Hammerton Street and pulling out of the junction into Bowling Back Lane.[13]The Peugeot is stationery at the entrance of Stamford Street for some time (around a minute) when suddenly the same man who has been standing on the corner using his phone gets out from the passenger side, walks round the back of the Peugeot and the Seat Alhambra then appears and stops in the mouth of the junction for the driver to talk to the man for 26 seconds. The Alhambra then leaves going right to left but returns travelling left to right at 6.21.31. By this point the Ford Cougar is stationery in the junction of Hammerton Street. As the Seat Alhambra is passing the Ford Cougar lurches forward over the white line and a collision looks inevitable until it brakes suddenly and the Seat passes without incident. The same man is seen walking towards the corner of Stamford Street again and after a while gets into to another car which is parked on the corner. He drives over to Hammerton Street where the Ford Cougar is again in the junction. He stops right next to the Ford Cougar and the drivers appear to have a conversation which causes the Ford Cougar to do a U turn and return back down Hammerton Street.[14]By 6.28.48pm the Ford Cougar is back at the exit from Hammerton Street and the man is back on the corner again looking, gesticulating and on the phone. The Ford Cougar is then stationery for some time and there are at least two occasions when no traffic is seen coming from either direction for several seconds when there would have been ample time for the Ford Cougar to emerge safely. At 6.29.39 the Seat Alhambra is seen driving along Back Bowling Lane from left to right for the eleventh time and the Ford Cougar drives straight out hitting the front nearside of the vehicle when clearly the Seat was right in front of him and impossible to miss seeing. The Claimant alleges that the man on the telephone was the link between the various parties and orchestrated the contrived accident.[15]The other evidence relied on by the Claimant The Claimant called two other witnesses Mr Harper and Mr Gettka. Mr Harper is a solicitor in the practice who are advising the Claimant in this case. He formally produced the recording of the CCTV evidence so that it could form part of the evidence in this case. He also swore an affidavit which revealed that the disputed collision occurred at 6.29 pm on Wednesday 19th September 2012. He searched the internet and discovered three scrap yards in the vicinity of Bowling Back Lane all of which close at 5pm on a weekday. Searches have also revealed that the First Defendant has been involved in five other collisions and has made claims for compensation in four of them. Similar searches have revealed that the Second Defendant has been involved in three other collisions.[16]Mr Gettka is a private investigator who visited Bradford Waste Traders at Back Muff Street which is just off Bowling Back lane and, according to Mr Nazir was his intended destination. He discovered from the manager of the scrapyard that it would have closed on 19th September 2012 at 5pm. The manager said the company does not advertise as it is so well known in the area. The evidence of these two witnesses was not really challenged by the counsel for the Defendants.[17]The evidence of the Defendants Both Defendants served affidavits containing their evidence and gave oral evidence at the trial. I was able to observe them give their evidence and make an assessment of their demeanour. The First Defendant is a taxi driver and had finished a night shift in the early hours of the 19th September and then gone to bed as usual. He awoke around 2-3pm, had a cup of tea and then went to the home of his mother-in-law at 51 Rugby Place Bradford. At paragraph five of his affidavit he stated:
“ At the time our children were attending primary school and after school they would attend the Mosque. They would be near my mother-in-law’s house and so routinely, after a night shift, I would wake up in the afternoon and go to my mother-in-law’s address to eat. It was basically the family home and a meeting point for the whole family”
[18]At the time the Second Defendant, who was 15 years of age, lived at that address because the First Defendant was married to one of the Second Defendant’s older sisters which would make him his brother-in-law. The First Defendant said he had an issue with his car involving an intermittent fault to the starter motor and on his way to his mother-in-law’s he called at two scrap yards on Spencer Road to see if they had a second-hand starter motor for a Seat Alhambra for sale. He was unsuccessful. He met a friend along the way who recommended a scrap yard called “Ray’s” on Bowling Back Lane near the Bradford Arms pub. As he arrived at his mother-in-law’s he had a discussion with the Second Defendant who said he wanted to go out to get some food. The First Defendant told him they could go to Akhbar’s Café on Leeds Road after visiting the scrap yard on Bowling Back Lane. They set off and arrived on Bowling Back Lane after 6pm. He found the Bradford Arms pub but was unable to find the scrapyard. He spoke to a male on the street who is the man shown on the CCTV and his evidence in the witness box was that the male did not know where the scrap yard was but thought it might be further down the lane. A little later he saw the male again who hand signalled him to stop and told the First Defendant he had spoken to a friend of his and that the scrap yard was on the same side of the road further down.[19]The First Defendant’s evidence is that they continued to search for the scrapyard but were unable to find it and at some point they were driving back along Bowling Back Lane when a Ford Cougar collided with his car. He was unable to avoid the collision and did not know the driver of the Ford Cougar and had never met him before. The Second Defendant evidently called the police. He has since discovered that the scrapyard he was looking for is called Bradford Waste Traders which is down Back Muff Street a narrow street adjacent to the Bradford Arms pub and not far from the accident scene. He contends that this was a genuine accident.[20]The Second Defendant supported this version of events. He said that he had become bored with his mother’s traditional cooking and wanted to get a take away meal. His mother gave him £5 to get something. He was on his way out when he met the First Defendant who promised to take him to Akhbar’s Café once he had visited a scrap yard on Bowling Back Lane to buy a part for his car. It was while he was searching for the scrap yard that the accident occurred.[21]Neither of the Defendants were however convincing witnesses. The First Defendant appeared nervous and was somewhat garrulous. He was asked several times whether he had eaten at home or at his mother-in-law’s and he seemed most reluctant to answer this question. He at first said he had already had something to eat but could not say where. He then kept referring to cups of tea which I had to explain to him was a drink not something to eat. He had to accept that he did not know what a starter motor would cost either from a dealer or a scrapyard (although the latter would be cheaper) and had not bothered to telephone the scrapyard to see if they had the part or whether they would still be open after 6pm when he was likely to arrive. He had also to accept that when interviewed by the police he had told them they were on their way to get cake from Akhbars and there was no record of him saying that he was looking for a scrapyard to buy a starter motor for his car. Eventually he tried to suggest that he had told the police this and they had failed to record it. It was also suggested to him that his brother-in-law was wanted to buy a take away meal, not merely cake but he said his brother-in-law was a “fussy kid” as if this in some way explained it.[22]The Second Defendant was perhaps more combative as a witness but no more convincing. He regularly repeated certain phrases such as “to be honest with you” “I don’t want to lie under oath” and “this happened six years ago, not six months or six days”. He confirmed that his mother cooked a meal for the extended family at 5.30pm every day but he was bored with this so his mother gave him money for a take away. This seemed unlikely to me when she had already cooked a meal for the whole family which he could have eaten. He said that he left with his brother-in-law but as they were driving up and down Bowling Back Lane he was not asked to look out for the scrapyard they were planning to visit. He said he was listening to the stereo. He then said:
“After seven or eight times I said to him let’s leave it” – he then corrected himself saying he didn’t say that at the time and that he had just lied and he didn’t mean to, repeating his mantra about “six years not six months or six days”
. He then said he was asked by the First Defendant to look out for a scrapyard “multiple times”.[23]The Second Defendant accepted that he had been interviewed by the police twice, in July and November 2013. It was put to him that the second interview was after the CCTV evidence had been disclosed. He denied this and said that the first time he had seen the evidence was during the trial yesterday. He then had to accept that we had all viewed the evidence at the hearing on 17th November 2017. There was also evidence from Mr Harper that digital files containing the evidence were sent to the Second Defendant’s email address and two of the three attachments were shown as accessed on 14th August 2017. He said they didn’t open but showed no real curiosity what the CCTV evidence would show, for example by asking to see the First Defendant’s copy. This had no real bearing on the issues in the case but was not credible evidence. He had to accept that he could have told the police about searching for a scrapyard when he was interviewed but he made no comment on the advice of his solicitor.[24]Analysis I accept the burden of proof is on the Claimant and the standard of proof is the criminal standard, beyond reasonable doubt. The key to the case is the CCTV evidence which I have described above. On my assessment it is convincing evidence of a staged accident. The behaviour of the man on the corner, the driver of the Ford Cougar and the Peugeot are highly suspicious and it is significant that the Ford Cougar returns to Hammerton Street several times to perform the same manoeuvre. Counsel for both Defendants rely on the fact that the Claimant has called no evidence connecting these Defendants with either the driver of the Ford Cougar or the man appearing to orchestrate this crash. I have to accept that is correct but if I accept that this was a staged accident, why would the driver of the Ford Cougar choose to run into the Seat Alhambra unless that was part of the conspiracy? On any subsequent claim the driver of the Ford Cougar could not make a claim and he could only be staging the accident for the benefit of the innocent party who could then claim from his insurers, in this case the Claimant.[25]The First Defendant said he did not know why he had been chosen as the target for this accident and the suggestion was made that it may have been a case of mistaken identity from the point of view of the Ford Cougar driver. I find that is most unlikely for two reasons: firstly, the orchestrator appears to have had conversations with the Ford Cougar driver probably by telephone and at least once in person and it would be vital to choose the correct target car; secondly, there was a “near miss” incident shortly before the real accident which again involved the Seat Alhambra. This suggests that the near miss was a first attempt which was abandoned at the last minute for some reason. It does however suggest premeditation with the Seat as the target vehicle.[26]The CCTV footage does not support the First Defendant’s version of events in relation to the conversation with the organiser. When he is shown talking to the First Defendant through the car window this was the second conversation according to the First Defendant and arose after he had been flagged down by the man. There is no sign of him waving or making any arm movements on the CCTV. He is shown briskly getting out of the passenger side of the Peugeot car and walking round the back of it with the First Defendant then appearing and slowing down for a conversation. It was as if he had seen the First Defendant approaching and knew he was going to stop.[27]Both Defendants pray in aid that the First Defendant would not expose his 15-year-old brother-in-law to danger by allowing him to be involved in a road traffic accident. This may have been unwise but this was never an accident which was intended to cause any genuine injury and was in many ways a “controlled collision” with the Ford Cougar moving a short distance from stationery to collide with the Seat. What did the First Defendant have to gain? He was paid the pre-accident value of his seven-year-old car and had the opportunity to be paid compensation for personal injury for both him and the Second Defendant. It is possible that he thought the limited risks were worth the potential rewards.[28]In my Judgment the evidence from the CCTV is overwhelming that this was a staged accident. I have discounted the possibility that the conspirators somehow mistakenly hit the wrong car. Logic suggests that they chose the right car for the reasons I have outlined. This suggestion could however have been displaced and a reasonable doubt created if the Defendants had been convincing witnesses. Sadly, they were not. Counsel for the First Defendant said his client was a nervous witness who was desperately trying to prove his innocence. I have to agree with his assessment but I would add that in my judgment both Defendants were desperately trying to prove their innocence by lying on oath.[29]Counsel for the Second Defendant raised the possibility that if I found the First Defendant had staged this accident he may not have revealed that to the Second Defendant. I think that is inherently unlikely and that the Second Defendant would perhaps have been a more convincing witness if he was genuinely innocent.[30]I find as a fact to the criminal standard that:(i) the defendants deliberately set out to deceive the Claimant by falsely claiming that they were injured in a genuine accident when they had conspired with others to create it;(ii) the defendants must have intended thereby to interfere with the administration of justice;(iii) the conduct complained of must have had a tendency to interfere with the administration of justice.[31]In relation to the statements made in the claim form and Particular of claim that they were victims of a genuine accident I find as fact to the criminal standard:(i) the statements in question were false;(ii) the statement has, or if persisted in would be likely to have, interfered with the course of justice in some material respect;(iii) at the time it was made the maker of the statement (a) had no honest belief in the truth of the statement; and (b) knew of its likelihood to interfere with the course of justice.[32]I reach these findings because I am satisfied so that I am sure that the Defendants both knew they were involving themselves in a staged accident and must have known that following that they would make a claim which was dishonest. I also find that they must have known that by issuing and pursuing proceedings based upon a staged accident they were interfering with the course of justice by using the courts as an unwitting vehicle to pursue a dishonest claim.[33]It follows from these findings that both these Defendants are found to be in contempt of court and that each of the grounds are found proved.

Cited in 1 later judgment