Basharat Hussain v Adil Hussain and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Lord Justice Treacy |
| Judgment Date | 23 October 2012 |
| Neutral Citation | [2012] EWCA Civ 1367 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2011/3158 |
| Date | 23 October 2012 |
[2012] EWCA Civ 1367
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
JUDGE SPENCER QC
9DW001159
Royal Courts of Justice
Strand, London, WC2A 2LL
Master of the Rolls
Lord Justice Davis
and
Lord Justice Treacy
Case No: B3/2011/3158
MR MICHAEL REDFERN QC and MR SIRAJ AHMED (instructed by Veritas Law) for the Appellant.
MR CHRISTOPHER KENNEDY QC and MR MICHAEL LEMMY (instructed by Keoghs LLP) for the Respondents.
Hearing date: 10 th October 2012
Introduction
This is an appeal, brought by permission granted by Dame Janet Smith, against an order of HHJ Shaun Spencer QC, sitting in the Bradford County Court, dated 16 th November 2011. By that order he dismissed the claim of the claimant, Mr Basharat Hussain ("the claimant") and ordered him to pay the costs of the second defendant, Aviva UK Insurance Limited ("Aviva") on an indemnity basis.
The claim itself had been for damages arising out of a road traffic incident occurring on 7 th January 2009 when the car of the first defendant, Mr Adil Hussain (no relation to the claimant and who did not appear in the proceedings) collided with the car of the claimant. The claimant alleged negligence on the part of the first defendant. The damages claimed were in a relatively modest amount: some £5,000 for repair, car hire and miscellaneous expenses and damages for soft tissue injury to the neck. The first defendant had a contract of insurance with Aviva, which duly participated at the trial. Aviva's defence was to the effect that the claim was fraudulent. Aviva put the claimant to proof that the collision had occurred at all and that the first defendant even existed. It was, however, averred as the principal defence that the purported accident was a "staged" collision, designed to set up a dishonest insurance claim; and that the claimant had knowingly been complicit in that. It is well-known that staged collisions have in recent times been a problem for the insurance industry.
The trial judge, after hearing the evidence over a 3 day trial, accepted that defence. He found that it was established that there had been an attempted fraud to which the claimant was party. He did not accept the evidence of the claimant to the contrary.
Appeal approach
The appeal thus in essence, subject perhaps to one point, is against the judge's factual conclusions. That immediately raises the question of what the approach of the Court of Appeal should be. We were addressed at some length on this, both in writing and orally, by Mr Redfern QC (who had not appeared below) and Mr Ahmed on behalf of the appellant claimant and by Mr Kennedy QC (who had not appeared below) and Mr Lemmy on behalf of Aviva: with ample citation of familiar authority.
The task of the Court of Appeal in a case of this kind is to consider whether the judgment of the judge below was "wrong": see CPR 52.11(3)(a). The appeal will not be allowed unless it is to be so concluded. This case is of a kind which depended entirely on the judge's assessment and evaluation of the relevant evidence (which was primarily, though by no means solely, oral) and the conclusion to be drawn from the facts as found. For this purpose it is well-established that an appeal court simply does not have the advantages of the trial judge, who will have observed the witnesses give evidence, will have been able to assess their demeanour and, generally, will have the "feel" of the case. Since the Court of Appeal does not have these advantages, the trial judge's assessment of the witnesses will naturally carry significant weight. The rationale is summarised by Viscount Sankey LC in Powell v Streatham Manor Nursing Home [1935] AC 243 at pp 249–251, which familiar passage does not need to be set out here. Further, the appellate court is not required to be convinced that the trial judge was right: rather, it has to be satisfied that he was wrong. That was so stated by Lord Blanesburgh in Powell's case at p.251; and although he was speaking over 60 years before the introduction of the Civil Procedure Rules his observations remain valid.
We were also referred, among other authorities, to the observations of Ward LJ in delivering his dissenting judgment in the case of Assicurazioni Generali Spa v Arab Insurance Group [2003] 1 WLR 577 at paragraphs 196–197. In particular at paragraph 197 he said this:
"Bearing these matters in mind, the appeal court conducting a review of the trial judge's decision will not conclude that the decision was wrong simply because it is not the decision the appeal judge would have made had he or she been called upon to make it in the court below. Something more is required than personal unease and something less than perversity has to be established. … I would pose the test for deciding whether a finding of fact was against the evidence to be whether that finding by the trial judge exceeded the generous ambit within which reasonable disagreement about the conclusion to be drawn from the evidence is possible. The difficulty or ease with which that test can be satisfied will depend on the nature of the finding under attack. If the challenge is to the finding of a primary fact, particularly if founded upon an assessment of the credibility of witnesses, then it will be a hard task to overthrow. Where the primary facts are not challenged and the judgment is made from the inferences drawn by the judge from the evidence before him, then the Court of Appeal, which has the power to draw any inference of fact it considers to be justified, may more readily interfere with the evaluation of those facts."
Ward LJ's previous reference in his judgment to the trial judge having a "margin of appreciation" in such circumstances reflects, albeit (as he said) borrowing language from another jurisdiction, the established principles and the need for caution in interfering with a trial judge's evaluation of the witnesses. I would for myself, however, be a little wary of saying that, for an appellate court to interfere with a judge's assessment of the evidence, it must be satisfied that the trial judge was "plainly" or "clearly" wrong – because the Rules do not so provide. Moreover the issue on an appeal such as this does not concern the exercise of a discretion but concerns the judicial evaluation of evidence.
The question thus is whether the judge's conclusion on the evidence was wrong. For that purpose the background and the judge's relevant findings need to be set out.
The judgment and background facts
It is the case – much emphasised at trial and on this appeal – that the claimant was a man, at the age of 29 at the time of the incident, of positive previous good character. He has no previous convictions. The evidence was that he has two law degrees from Bradford University. At the time of the collision and claim he was working in the Charges Department of HBOS, albeit he has subsequently taken voluntary redundancy. He says that he hopes to go back into the legal profession in the future: the finding of fraud thus has particular implications for him. He had at the time of the collision held a full driving licence for over 12 years. His car was insured, with the insurance fully paid up. He owns his own house and is married with two children.
The site of the alleged collision was a roundabout on the A647 between Leeds and Bradford. The claimant said that on the morning of 7 th January 2009 he was proceeding in his car round the roundabout, having come on to it from a road to the south called Galloway Lane. His sister and two nieces were in the car also. Whilst his car was on the roundabout, the first defendant in his car (with other passengers in it) entered the roundabout from a road to the west – in circumstances where the claimant would have had precedence – and collided with the front near-side of his car. The impact was later described as "minor" by a vehicle inspector.
The claimant's car was a 9 year old Ford Focus Ghia, with a value of around £2,500 and which he had owned for two years. The first defendant's car was a Daewoo, some 11 years old with a value of some £500: the impact to the Daewoo (also "minor") had been assessed as being primarily to the front offside.
It transpired that a man giving the name of the first defendant had taken out a policy of insurance for the Daewoo car just two days earlier, on 5 th January 2009. The insurer was Aviva. At that time Aviva had an arrangement relating to persons wanting Hire Purchase Information ("HPI") with regard to buying a used car. Such a person would wish to know that the vehicle was not subject to a hire purchase agreement: he would also want immediate insurance if he decided to acquire the car. Aviva's arrangement was that a person seeking an HPI check (usually paying for it by way of a credit card) would be offered seven days' free insurance with Aviva if he then acquired the car. Doubtless Aviva hoped thereby to secure thereafter the insurance for the following year.
The man with the first defendant's name availed himself of that offer in buying the Daewoo. He had given an address (at which he subsequently could not be located) and telephone number and used a credit card ending with the numbers 60259 for the HPI check. Then two days later the collision occurred.
The suspicions of Aviva were aroused. There had been a significant number of collisions – some involving use of the same car-recovery, car-hire and repair firms on more than one occasion – allegedly occurring within the free...
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