Accident Exchange Ltd v Nathan John George Broom and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 24 May 2017 |
| Neutral Citation | [2017] EWHC 1096 (Admin) |
| Date | 24 May 2017 |
| Docket Number | Case No: CO/12739/2011 |
| Court | Queen's Bench Division (Administrative Court) |
[2017] EWHC 1096 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Supperstone
Case No: CO/12739/2011
John Charles Rees QC and Guy Vickers (instructed by DLA Piper) for the Claimant
Craig Barlow and Jamie Sawyer (instructed by Norton Peskett) for the 1 st Defendant
Alison Padfield (instructed by Fleet Solicitors) for the 2 nd Defendant
David Flood (instructed by Canter, Levin & Berg) for the 3 rd Defendant
Peter Gilmour (instructed by Platt Halpern Solicitors, Manchester) for the 4 th Defendant
Michael Coley (instructed by Knights Solicitors, Oxford) for the 5 th Defendant
David Giles (instructed by Norton Peskett) for the 6 th Defendant
Gemma Witherington (instructed by Burton & Co) for the 7 th Defendant
Hearing dates: 6 February-29 March, & 10–12 April 2017
Approved Judgment
Introduction
The Claimant, Accident Exchange Limited ("AE") applies to commit the Defendants to prison on the grounds that each of them engaged in conduct which interfered with the due administration of justice and they were thereby in contempt of court.
AE was part of Accident Exchange Group plc. It was a specialist car hire and claims management company whose main business was the hire of cars to victims of road traffic accidents. It operated a fleet of mainstream, specialist and prestige hire vehicles, and provided replacement cars on credit hire terms.
The Defendants, and each of them, were employed as rates surveyors by a company known as Autofocus Limited "(AF)". The First and Seventh Defendants were both rates surveyors and team leaders. The Second Defendant was a Director of AF.
AF provided forensic services principally to motor insurers when an issue arose in litigation in the County Court as to what daily rate of hire could be recovered by a car hire company through a claimant whose car had been damaged and who had hired a replacement car on credit hire terms (even though the claimant could have afforded to hire one on non-credit hire terms). Insurers, who in the ordinary way bore the proper cost of the hire, very often challenged the charge that was made.
Aikens LJ explained in Dickinson v Tesco plc [2013] EWCA Civ 36 (at para 4) that the House of Lords in Dimond v Lovell [2002] 1 AC 384 established that:
"If a claimant hires a replacement car on credit terms when he could have afforded to hire one without credit terms, then, generally speaking, the damages recoverable for loss of use of the damaged car will be only that sum which is attributable to the basic hire rate of the replacement car, i.e. the hire rate stripped of the cost of any 'credit' elements. This 'basic hire rate' has more recently been dubbed the 'BHR'. Thus, if a claimant car driver brought proceedings to recover the cost of the repairs of the car damaged by a defendant driver and AE had provided the replacement car on credit terms, AE would, generally speaking, recover the sum awarded by the judge in respect of the basic cost of hiring the replacement car, by right of subrogation or assignment."
Aikens LJ continued at para 5:
"In the nature of things, the insurer of the defendant driver would wish to demonstrate that the BHR was lower than the hire rate charged by the credit hire company, so that the sum the car hire company could recover should be only the BHR, not the actual hire rate charged. Through its research and its reports AF provided a service which was designed to assist in demonstrating that the relevant BHR was lower than the daily hire rate charged by the credit hire company."
The essence of the case against the Defendants is summarised at paragraphs 3–6 of the Amended Claim Form ("the Claim Form"):
"3. Following road traffic accidents individual claimants who are thought to be without fault in such accidents are referred to the Claimant, typically by repairers of their vehicles, and the Claimant provides a suitable equivalent vehicle on credit hire. The insurers of the at-fault driver often seek to argue that where such claimants are not impecunious any part of the daily rate charged by the Claimant which is for 'additional benefits' (that is to say elements of the price which are thought to represent the cost of credit, claims management and other overheads which would not arise if the hire was being paid for up front) should be 'stripped out' of the daily rate.
4. In order to attempt to establish the amount that should be stripped out, such insurers often seek to adduce evidence from so-called rates surveyors purporting to show that there were lower daily rates on a non-credit hire basis (the Basic Hire Rate) available in the local market place at the time of hire and that the difference between those rates and the rate charged by the Claimant represents the value of the additional benefits which should be stripped out.
5. For the provision of such evidence insurers utilise the services of companies such as Autofocus who purport to specialise in the provision of rates reports based on both alleged databases of historic rates information and specific inquiries allegedly made by telephone of local car hire companies who were trading at the relevant time. Sometimes one surveyor would produce the report but claim that the telephone enquiries had been carried out by another surveyor. As many cases involving credit hire claims are heard up and down the country and, given the amounts involved, often in the busy lists of District Judges, it was normal for rates evidence to regularly be received in written form and Autofocus became a well-known and apparently trustworthy source of factual evidence concerning local spot rates whose evidence was routinely taken at face value.
6. Each of the Defendants has produced written surveys, reports and/or witness statements setting out details of alleged telephone enquiries carried out by him/her or (in some cases) another surveyor purporting to show basic hire rates (then known as 'spot rates') obtained by them as a result of those telephone enquiries. Each report or witness statement was signed with a statement that its contents were true. In some cases each of the Defendants went to court and gave evidence on oath confirming the contents of their report or statement to be true."
In summary the conduct complained of included:
i) In respect of all the Defendants, verifying documents for use in various proceedings by signing them with statements of truth when they were false to their knowledge or when they did not believe them to be true;
ii) In respect of the First, Third, Fifth and Sixth Defendants, causing documents for use in various proceedings to be signed with statements of truth when they were false to their knowledge or when they did not believe them to be true;
iii) In respect of the First, Third, Fourth, Fifth and Seventh Defendants, giving false evidence on oath at the trial of various proceedings seeking to interfere with the course of justice.
Permission to bring this claim was granted by the Divisional Court on 1 February 2012. Irwin J (as he then was) (with whom Moses LJ agreed) said:
"3. Autofocus found a niche within the market giving evidence as experts on behalf of defendant insurers seeking to reduce those claims. There have been literally thousands of such cases tried and settled. As the applicant here would say: tried and settled in very many cases, on the basis of evidence given by Autofocus witnesses, effective in reducing the claims. It is suggested the evidence was based on fraud and perjury. Again, in very short compass, the suggestion is that these named respondents, and others within Autofocus, consistently presented reports to the other side, and in those instances where matters were contested, gave oral evidence to the effect that they had checked the spot rates for comparable vehicles within the relevant locality, or at least the relevant market, demonstrating that the credit hire company's charges were inflated and the claims therefore excessive. The suggestion is that that evidence was based on lies, and there had not been the checks to establish the spot rates within the relevant markets that were claimed.
4. So far as Accident Exchange Ltd is concerned, there are said to be some 3,600 cases, and the suggestion is that overall there may be in the region of 30,000 cases concerned."
Noting that the allegations against AF involved literally thousands of cases tried and settled, Irwin J observed (at para 7) that "If these allegations were made out, as my Lord Moses LJ has said, this would be perjury on an industrial scale".
It is the Claimant's case that AF was involved in the systematic, endemic fabrication of evidence in which the Defendants and each of them knowingly and actively participated. The cases listed in the schedule to the claim "represent only an indicative sample of the cases in which the Defendants have committed contempt of court and/or perjured themselves" (Amended Claim Form ("the Claim Form"), para 10).
In his closing submissions (at para 24) Mr John Rees QC, on behalf of the Claimant, submits that:
"The main perpetrators of this very serious perversion of the course of justice were Colin McLean, Suzy Forrest, Elaine Walker (D2) and Paul Wilcox, Chairman, Managing Director, and directors of Autofocus respectively, together with Stuart McLean, training officer and brother of Colin McLean, although the team leaders and rates surveyors were willing participants therein."
Mr Stephen Evans, chief executive of Automotive and Insurance Solutions Group plc (formerly...
To continue reading
Request your trial
-
R Accident Exchange Ltd v Nathan John George Broom and Others
...found to be in contempt of court. The facts of the case are set out in detail in the judgment that I handed down on 24 May 2017 ( [2017] EWHC 1096 (Admin)) following an eight-week trial. In summary, Accident Exchange Limited (whom I shall refer to as "AE") applied to commit the Defendants ......
-
(1) Accident Exchange Ltd v (1) Colin McLean
...allegations against AF: the nature of them can be seen in the judgment of Supperstone J in Accident Exchange Ltd v Broom and ors, [2017] EWHC 1096 (Admin), in which, in so far as they were not admitted, he upheld complaints of contempt of court against seven persons whom AF had employed as......
-
Hassan Khan & Company v Mrs Iman Said AL-Rawas
...the course of justice. See Daltel Europe (in liquidation) v Makki [2005] EWHC 749 (Ch) at §81 and Accident Exchange Ltd v Broom [2017] EWHC 1096 (Admin) at §§34 to 36. (2) False statements under oath 72 In the case of interference with course of justice by making false statements under oa......