Boodoosingh v Ramnarace
| Jurisdiction | UK Non-devolved |
| Judge | Lord Brown of Eaton-under-Heywood |
| Judgment Date | 08 March 2005 |
| Neutral Citation | [2005] UKPC 9 |
| Court | Privy Council |
| Docket Number | Appeal No. 50 of 2003 |
| Date | 08 March 2005 |
[2005] UKPC 9
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Privy Council
[Delivered by Lord Brown of Eaton-under-Heywood]
At about 1.00 a.m. on 9 August 1998, in a Bar at Penal, the respondent suffered serious injuries when he was shot in the face by the appellant. The respondent, then in his early twenties, was drinking at the Bar with his brother Mitra and two friends. The Bar was owned by the appellant's wife and so too was the licensed firearm used by the appellant in the shooting. The appellant, a policeman of many years service (although engaged in administrative work rather than the investigation and prevention of crime), was off duty at the time. Immediately before the shooting he had been watching TV in the family flat above the Bar when a disturbance broke out below. It was in response to that that he armed himself and went downstairs. So much has always been clear and undisputed. Altogether less clear and hotly in issue, however, were the particular circumstances in which the appellant came to shoot the respondent.
The respondent's case was that he and his friends were in no way responsible for the disturbance. Rather an altercation had broken out between three other men in which one of the respondent's friends sought to intercede as peacemaker. When the respondent attempted to extricate his friend the appellant came up and shot him. The appellant's radically different account of the matter was that he had come downstairs to find the respondent himself holding up the barman in an attempt to rob the Bar. The respondent, said the appellant, "had a black plastic bag in his hand. … [He] pointed his hand which was holding the black plastic bag towards me".
On 17 May 1999 the respondent issued proceedings against the appellant for damages for assault and battery. His statement of claim particularised extensive facial and dental injuries and described the treatment he had already undergone. It stated that further reconstructive surgery and dental treatment was required and itemised various items of special damage (although nothing at that stage by way of loss of earnings). A defence and reply followed in due course.
The action came on for the trial in the High Court before Bereaux J on 2 May 2001 and was heard over nine days finishing on 15 May. On the second day of the hearing, 3 May 2001, the respondent was granted leave to amend his statement of claim to include a special damage claim for loss of earnings at the rate of $4,600 per month from 9 August 1998 until March 2001. Judgment was reserved and given in writing on 6 July 2001. The appellant was held liable and an order was made in favour of the respondent for general damages (including aggravated damages) of $150,000 for the assault and battery (to bear interest at 12% from 17 May 1999 to 6 July 2001); future medical expenses of $40,000; and special damages for loss of earnings of $132,000 (to bear interest at 6% from 9 August 1998 to 6 July 2001). Execution of the judgment was stayed for 6 weeks. Since then, however, no stay of execution has ever been sought or granted on any part of the award, although to this day not a single dollar has been paid under it.
The judge's finding of liability against the appellant was made in the strongest terms. He found the appellant's account of the shooting "not [able] for its incongruity" and expressed himself "satisfied that much of [his] account was grossly untrue". The judge said that having closely observed the appellant as a witness "I am satisfied that his evidence was nothing more than a well rehearsed contrivance". By contrast he accepted "every aspect" of the account given by the plaintiff and his witnesses. "They were four young men 'liming' [hanging out together] and enjoying a Saturday night out. Their accounts of how the incident occurred were consistent … and unshaken in cross-examination". He concluded:
"I am driven to describe [the appellant's account] as a bold-faced lie. That the [respondent] has escaped with his life was an act of forbearance of the Almighty; that the [appellant] has escaped a criminal prosecution is a travesty of justice. In my judgment he is lucky not to have been charged with attempted murder."
On 10 July 2001 the appellant served notice of appeal against the judgment, asserting baldly that the judge's findings were against the weight of the evidence and that the damages awards were "contrary to principle". Fifteen months later, on 8 October 2002, just a month before the appeal itself was due for hearing, the appellant's attorney, Mr Kamta, wrote to the Court of Appeal stating that he had "come to the conclusion that having regard to what transpired at the trial and what has been recently brought to our attention … the most appropriate step is to have the judgment set aside for fraud which are (sic) particularised in the statement of claim filed today"; he would accordingly be seeking to adjourn the hearing of the appeal on 6 November 2002. The fraud alleged against the respondent is essentially that he lied at the trial with regard to his loss of earnings claim, falsely stating that he had not worked at all from the date of the shooting (9 August 1998) until March 2001 (a month before the hearing) whereas in fact he had. The judge had accepted the respondent's oral evidence that he earned $2,200-$2,300 per fortnight; the award of $132,000 appears to represent sixty fortnights (approximately the period between the shooting and March 2001) at $2,200 per fortnight.
The appeal duly came before the Court of Appeal (Warner, Lucky and Kangaloo JJA) on 6 November 2002. As foreshadowed in his letter of 8 October, Mr Kamta asked for the hearing to be adjourned so that the fraud action could be pursued first. Although later he indicated to the Board that he has come to change his view, Mr Kamta expressly told the Court of Appeal:
"The question of the loss of earnings ought to have, really, another judicial determination. But, unfortunately, the Appellate Court cannot deal with that as the law stands."
That aside, the appellant at that stage appears to have had no documentary evidence upon which he could have sought to disturb any of the findings of the judge below.
Hardly surprisingly the Court of Appeal refused an adjournment and proceeded to hear Mr Kamta's brief submissions on the substantive appeal. None of these had the least merit and none are now of any materiality.
Warner JA gave a brief extempore judgment (concurred in by the other members of the Court) dismissing the appeal and recording, with regard to the adjournment application:
"We refused the application not only on account of the delay, having regard to the fact that the grounds of appeal were filed as far back as 10 July 2001, by Mr Kamta for Kamta and Company, but because, as well, there was no material before this Court upon which this Court could entertain such an application, which was, essentially, an application to stay these proceedings. Mr Kamta no doubt recognised the uphill task he faced to persuade us to disturb the findings of fact that the trial judge saw and heard the witnesses and had the opportunity to assess the evidence."
Later in her judgment Warner JA observed that "on the question of the loss of earnings … the trial judge accepted the evidence of the officer from the National Insurance Board. In effect, counsel has not really attacked that aspect of the award". (Evidence had indeed been given at the trial by an independent witness from the National Insurance Board saying that the respondent had made contributions out of earnings from 24 November 1997 until 2 August 1998 but at no time thereafter.)
Following the Court of Appeal judgment the appellant was granted conditional leave to appeal to the Privy Council on 16 December 2002 and, on payment of the required security of £500, final leave to appeal on 7 April 2003.
Before finally their Lordships come to consider the basis of the present appeal it is convenient first to take brief note of certain events with regard to the appellant's fraud action, that is to say the action begun on 8 October 2002 by which the appellant seeks, independently of any appeal, to impeach Bereaux J's judgment in the present action on the ground that it was obtained by fraud.
The fraud action, it may be noted, was brought not only against the respondent but also against his brother Mitra (who had given evidence not only supporting the respondent's account of the shooting but also confirming that he had...
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