Christopher Simon Jones v Zurich Insurance Plc
| Jurisdiction | England & Wales |
| Judge | Pelling |
| Judgment Date | 18 May 2021 |
| Neutral Citation | [2021] EWHC 1320 (Comm) |
| Date | 18 May 2021 |
| Docket Number | Case No: LM-2020-000012 |
| Court | Queen's Bench Division (Commercial Court) |
[2021] EWHC 1320 (Comm)
HIS HONOUR JUDGE Pelling QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: LM-2020-000012
IN THE HIGH COURT OF JUSTICE
BUBINESS AND PROPERTY COURTS OF ENGLAND AND WALES
LONDON CIRCUIT COMMERCIAL COURT (QBD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Mr George Spalton QC (instructed by Edwin Coe LLP) for the Claimant
Mr Graham Eklund QC (instructed by Clyde & Co) for the Defendant
Hearing dates: 4–6 May 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Pelling QC SITTING AS A JUDGE OF THE HIGH COURT
HH Judge Pelling QC:
Introduction
This is the trial of a claim by the Claimant (“Mr Jones”) to recover the agreed value of a Rolex Daytona Tropical watch (“the Watch”) under a policy of insurance (“Policy”) underwritten by the Defendant (“Zurich”). The agreed value of the Watch was £190,000. Mr Jones alleges that he lost the watch as the result of a fall while skiing in Aspen in Colorado on 30 March 2019. Zurich puts the Claimant to proof as to whether and if so in what circumstances the watch came to be lost. Zurich has not pleaded any positive case either that the watch was not lost or was lost in circumstances not covered by the Policy. In any event Zurich alleges that it is entitled to avoid the policy by reason of a failure by Mr Jones to disclose a previous loss when proposing cover to Zurich.
I heard oral evidence adduced on behalf of Mr Jones from Mr Jones, Mr Thomas Trautmann, who is Mr Jones' uncle and was at all material times his executive assistant, and Mr Dourneau, who was skiing with Mr Jones on the day when the loss is alleged to have occurred. I heard oral evidence adduced on behalf of Zurich from Mr Michael Green, a senior market underwriter employed by Zurich, who underwrote the Policy on its behalf.
Expert underwriting evidence was adduced from Mr Pipe by Mr Jones and from Mr Coates by Zurich. The parties had intended to adduce expert evidence concerning the value of the Watch but in the end that was unnecessary because it was agreed in the course of the trial that as a matter of construction the Policy was an agreed value policy with the result that its value at any particular date was immaterial. An attempt by Mr Eklund QC to rely on the evidence for a collateral purpose failed for the reasons set out in a ruling I have given during trial concerning that application. It is not necessary that I set out either the issue or my reasons for ruling that attempt to be impermissible.
The first issue between the parties (that concerning whether and in what circumstances the Watch came to be lost) is one that depends in the end primarily on the oral evidence of Mr Jones. For reasons that I explain in detail hereafter, I have come to the conclusion that I cannot accept Mr Jones' evidence save where it is corroborated, against his interest or admitted. The issues that arise between the parties concerning avoidance depend on the evidence of Mr Jones and Mr Trautmann but is also the subject of significant documentation. The reliance issue is one that involves me assessing the evidence of Mr Green on what by definition is a hypothetical issue. I have approached the factual issues between the parties that are material to this dispute by testing the oral evidence of each of the witnesses wherever possible against the contemporary documentation, admitted and inconvertible facts and inherent probabilities. This is an entirely conventional approach – see Onassis and Calogeropoulos v. Vergottis [1968] 2 Lloyds Rep 403 at 407 and 413. This is not to say that a judge can attempt, or that I have attempted to, resolve factual disputes by referring only to contemporaneous documentation. It is necessary to consider all of the evidence – see Kogan v. Martin [2019] EWCA Civ 164 per Floyd LJ at paragraphs 88–89. However, there is nothing in that authority or the requirement to consider all of the evidence that prevents the evaluation of oral evidence using the techniques I have referred to.
Credibility
I am satisfied that other than Mr Jones, each of the witnesses who gave oral evidence were honest witnesses who did their best to give accurate evidence on the issues that they could assist to the best of their recollection. Any evidence from those witnesses that I reject is because I consider their recollection to be mistaken in those respects.
Turning to Mr Jones, I set out my reasons for reaching my conclusion concerning his credibility at this stage. I record that Mr Spalton QC who appears on behalf of Mr Jones did not at any rate strenuously seek to persuade me that I should adopt any other course. That approach was plainly justified simply on the basis of the oral evidence that Mr Jones gave in the course of the trial. I set out some examples of the problem below.
At the heart of this case lies a failure on the part of Mr Jones to disclose the prior loss of a diamond from a ring apparently being worn by his then girlfriend at the time. It is common ground that Mr Jones made a claim quantified in the sum of £15,000 in respect of this loss. It is common ground that in the proposal documentation for the Policy, under the question “ Any losses or claims in the last 5 years”, the answer provided was “ No”. When Mr Eklund QC who appears on behalf of Zurich, asked why that was so, Mr Jones said:
“Correct, I had, but that information wasn't relayed to Thomas who didn't relay it at the time of the loss of the diamond. It was a very irrelevant thing in that category of my life, so something, you know, human error I think you'd call it.
Q. That you hadn't told him?
A. That I hadn't told him that an ex-girlfriend lost a diamond”
Mr Jones added:
“He wasn't working for me at the time, so that's why when I just told him, “Can you go and insure my watches”, he just went and insured my watches, I don't — he wasn't to know about my pre — especially of something with such irrelevance as the 15 grand diamond that I have claimed when my ex-girlfriend decided to lose it.”
This evidence was plainly wrong because as Mr Jones accepted – T1/20–21 – he had been sent an email by the claims handler concerned with the loss of the ring that had been copied to Mr, which set out in significant detail some information being sought in respect of the loss. This resulted in the following exchange between Mr Eklund and Mr Jones:
“Q. So this is Mr Trautmann being involved in providing the proof to the insurers of the damage, photographs and any original purchase receipt or invoice for the ring. Do you see that?
A. Agreed.”
Following some questions about further emails that establish very plainly that Mr Trautmann was aware of the claim in respect of the loss of the diamond from the ring, the following exchange took place:
“Q. Mr Trautmann clearly knew that you'd lost the diamond beforehand, didn't he? When this presentation was made in May 2018 to Zurich, Mr Trautmann plainly knew that there had been a loss of the diamond, didn't he?
A. Again, you can see from his files, or from his email he's trying to dig up information from it because, as stated, my office is a fairly busy place and this is not on the highest priority of a £15,000 diamond when I'm trying to take out insurance of watches that I collect.
Q. Just answer the question for me please. It's fairly clear, isn't it, that Mr Trautmann did know when this proposal was being put forward to Zurich that you had … lost a diamond?
A. Yes.
Q. And that you'd made a claim for it?
A. Correct.
Q. And that you'd had previous insurance?
A. Correct.
Q. And that he'd been involved in helping you to claim the indemnity from the previous insurers.
A. Correct.”
In my judgment these answers show at the very least a fairly fundamental lack of recall of critical events material to this dispute. On that ground alone, this merits the cautious approach to Mr Jones' evidence. These exchanges also show what became a recurring theme during Mr Jones' evidence – an unwillingness to answer questions where he perceived a truthful answer would damage his case and an unwillingness to concede points that he likewise perceived to be damaging. These too are factors that merit the caution to which I have referred.
This theme continued as Mr Jones' cross examination continued as the following exchanges demonstrate. Having explained his living arrangements in answer to some questions from Mr Eklund that I need not take up time describing but which in summary did not involve at any material time living with his parents, the following exchange took place:
“Look at page 63, please. See at the bottom of page 63 —- it says “No claims, previously lived with parents”?
A. Yes.
Q. That is false, isn't it
A. I mean in theory, yes.
Q. It is not in theory, Mr Jones, it is false.
A. Correct.”
This is significant for two reasons. First it shows a willingness to countenance inaccurate answers to questions asked of him that he knew to be false and secondly it illustrates an unwillingness to give frank answers in the course of his evidence. A further example came when Mr Eklund asked Mr Jones about the quotation provided by Zurich for insurance in the terms of the Policy, which included a statement of facts that Zurich made clear formed the basis of the quotation and requested confirmation of its accuracy as a condition of providing cover. That document included a statement concerning prior claims that it is common ground was false. Mr Jones maintained that he had not seen the document but accepted that the document must have been provided either to Mr Trautmann or Mr Jones. The following exchange then took place:
“Q. The confirmation, if...
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