Brighthouse Ltd v Tazegul
| Jurisdiction | England & Wales |
| Judge | Mr Justice Spencer |
| Judgment Date | 12 July 2016 |
| Neutral Citation | [2016] EWHC 2277 (QB) |
| Date | 12 July 2016 |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB/2016/0109 |
[2016] EWHC 2277 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Spencer
Case No: QB/2016/0109
Mr Wright appeared on behalf of the Claimant
Mr Clarke appeared on behalf of the Defendant
(As Approved)
This is an appeal against the judgment of HHJ Coulthard dated 25 April 2016 sitting in the county court at Lewes on the ground that further evidence has subsequently come to light to suggest that the claimant and a witness called by the claimant may have given perjured evidence, with the result that the judgment was obtained by fraud.
It was a fast-track trial in a personal injuries claim arising from a road traffic accident. Liability and quantum were in issue. The claimant succeeded and was awarded damages of £6,425.49 with costs of £7,083.12.
The accident occurred on the A264 Crawley to Horsham dual carriageway in daylight on the afternoon of Monday 29 September 2014. The claimant was driving a silver BMW. An employee of the defendant, Mr Alleyne, was driving a 7.5 tonne lorry travelling in the same direction as the BMW. The claimant and Mr Alleyne gave completely different versions of the accident. The claimant's version was that he was travelling in the left-hand lane of the dual carriageway making his way to work at Horsham College. He knew the road well. There was traffic ahead of him as he approached the roundabout and he slowed down. In his rear view mirror he noticed the lorry behind and saw that the driver was using a mobile phone. The lorry was attempting to move into the offside lane, but vehicles in that lane would not let him, so he pulled back into the nearside lane. In doing so he failed to stop or slow down sufficiently and collided with the rear of the claimant's BMW.
Mr Alleyne's version of the accident could scarcely have been more different. His evidence was that he had overtaken a slow-moving vehicle and had returned to the nearside lane when he noticed the claimant's BMW coming up behind him very fast. The BMW immediately overtook him and pulled sharply into the nearside lane right in front of him and slammed on its brakes. He said he had no opportunity to avoid a collision. Mr Alleyne thought the claimant must have intended to cause the collision in view of the way he braked so sharply right in front of him.
The police were called. The two drivers exchanged details. There was no prosecution and no police evidence. There was, however, evidence from a witness called by the claimant, Mr Musa Hydara, who was put forward as an independent witness. He had been in a car travelling in the outside lane when the lorry attempted to pull out in front of him. When the lorry was unable to do so and moved back into the nearside lane, it collided with the rear of the claimant's vehicle. Mr Hydara claimed to have seen the collision. He saw that both vehicles had stopped but he did not stop himself. Coincidentally, he was also making his way to Horsham College. Later on that day he noticed the claimant's BMW in the car park, spoke to the claimant and said he had witnessed the accident and it was the lorry which was entirely to blame.
In addition to his job at Horsham College the claimant worked as a doorman at a club in Crawley called Angelique Bar. He suffered whiplash-type soft tissue injuries to his neck and back as a result of the collision. He asserted in his witness statement that he was not fit to return to his bar work until about early March 2015, a period of five months after the collision. In the event at trial the claim for loss of bar earnings was reduced to 12 weeks, producing a net loss of £1,920, which is the figure the judge awarded under this head.
The trial
Mr Hydara was a reluctant witness. He had completed a short witness questionnaire dated 20 April 2015 and made a witness statement dated 4 December 2015. In his witness statement he said, "I now know the driver of the BMW to have been Mr Tazegul. I did not know him and had never met him before seeing him at the college", that being a reference to noticing the BMW on the college car park later that day and speaking to the claimant.
The case was to have been heard at Eastbourne but in the event it was moved to Lewes. A witness summons had been served on Mr Hydara but when the trial started he had not arrived. Further enquiries were made during the course of the morning as the case proceeded, and Mr Hydara arrived in time to give evidence after the luncheon adjournment. Contact was made with Mr Hydara through Facebook, with the claimant's wife contacting Mr Hydara's partner, Ms Rawcliffe. The defendant's insurers had already looked into any possible links between the claimant and Mr Hydara on social networking sites. The claims adjustor who had been conducting that research, Mr Gilbert-Bryan, was present at court and continued his research over the luncheon adjournment before Mr Hydara gave evidence. He had established that the claimant's wife and Mr Hydara's partner, Ms Rawcliffe, have been friends on Facebook since January 2016, three months before the trial. That information was made available to counsel on both sides. It was also known that Mr Hydara and his partner, Ms Rawcliffe, both had Facebook profiles on which there were photos of them socialising at the Angelique Bar where the claimant worked as a doorman. It had also been discovered that Mr Hydara was a Facebook friend of Mr Idris Demir, the manager of Angelique Bar, who had signed a letter supporting the claimant's loss of earnings claim.
On the issue of their possible relationship both the claimant and Mr Hydara were closely cross-examined. The claimant was pressed as to why he had made no mention of Mr Hydara in his own witness statement (transcript page 42). He agreed that it was really important that he had been approached by a complete stranger at college who had witnessed the accident, but he said he had mentioned Mr Hydara to his solicitor. (which was plainly correct). Towards the end of cross-examination he was asked in terms whether he knew Mr Hydara before the accident happened. He replied that he did not know him, not as a person. He was aware that they lived in the same village. He did not drink with him. He recognised his face from somewhere. He did not associate with him or go out with him. He did not know what he did for a living. "I don't know nothing about him, basically" (transcript page 61). He thought he had seen him in town a couple of times. He did not know him or know of him before the accident.
When Mr Hydara was cross-examined he was pressed on several aspects of his account. If (as he claimed) he had driven straight to the college, how was it that the claimant's BMW was already there on the car park when he arrived, for him to have spoken to the claimant and volunteered to be a witness? How could the claimant have got there first bearing in mind that, unlike Mr Hydara, he had remained at the scene until the police came? Mr Hydara's explanation was that he had not gone straight to the college after all but only arrived there later on. How was it that Mr Hydara had said in his witness statement that he had been a passenger in the car with his girlfriend driving whereas in his evidence he had said the opposite? Surely he would have remembered whether he was driving or not when he witnessed the collision taking place to his nearside. If he was traveling faster than the vehicles which collided on his nearside, how could he have seen them actually coming to a stop?
It was put to Mr Hydara that his evidence of the accident was a made-up story (transcript page 76), to which his reply was, "That is your opinion. Prove that, can you?". He said he did not know that his partner and the claimant's wife were friends on Facebook: "I do not know the guy. I have never seen the guy". It was pointed out that he shared 75 Facebook contacts with Idris Demir, the manager of the Angelique Bar. He replied that Crawley was a small town where everyone seemed to know each other. There were only two clubs. He went to the bar sometimes with his girlfriend. Asked whether he knew the claimant by sight as one of the doormen, he said:
"Not really. I have seen him before there but … I do not really like bouncers … because of the way they act. But I have seen him there but it is like I have walked through him. They do not like me and I do not like them. It is simple."
He repeated that he did not know how his partner and the claimant's wife came to be connected on Facebook.
In her closing submissions counsel for the defendant addressed the inconsistencies in the evidence of the claimant and Mr Hydara in relation to the accident itself and submitted that there was a strong circumstantial case that the two men must have known each other. If they were to be believed, their vehicles happened coincidentally to be next to each other on the road at the time of the accident. By coincidence they were going to the same destination, Horsham College. By coincidence Mr Hydara saw the claimant's BMW in the car park and recognised it even though his evidence was that he did not know the model or the registration number of the car, or the identity of the driver. By coincidence it turned out there was a connection between the men on social media in the sense that there was a connection between their wives or partners, and a connection with a third party, the manager, Mr Demir.
In his cogent ex tempore judgment the judge acknowledged at paragraph 6 counsel's criticism...
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