Da Costa and Another v Sargaco and Another
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lord Justice Floyd,Mr Justice Moylan |
| Judgment Date | 13 July 2016 |
| Neutral Citation | [2016] EWCA Civ 764 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2014/2411 |
| Date | 13 July 2016 |
[2016] EWCA Civ 764
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HER HONOUR JUDGE BAUCHER
2IR12518
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Black
Lord Justice Floyd
and
Mr Justice Moylan
Case No: B2/2014/2411
Mr Andrew Hogan (instructed by Armstrongs Solicitors Ltd) for the Appellants
Mr James Laughland (instructed by Keoghs LLP) for the Respondents
Hearing date: 9 th March 2016
Approved Judgment
This is an appeal against the order of HHJ Baucher sitting in the Central London County Court on 25 June 2014. The appellants were the claimants in the proceedings before Judge Baucher and I will continue to refer to them as such in this judgment. Their case was that they each owned a motorcycle and that, on 20 July 2011, when the motorcycles were parked together outside the house where the claimants lived, a car driven negligently by the first defendant ran into them and damaged them. Each claimant claimed damages, including the pre-accident value of the motorcycle and the cost of hiring alternative transport.
The second defendant in the proceedings had provided insurance for the car in the name of the first defendant and was obliged to discharge any judgment obtained by the claimants against the first defendant. The first defendant not having been traced, it was the second defendant (hereafter "the insurance company") which actively contested the claimants' claims. It contended that the claims were fraudulent.
The judge found the accounts of the claimants "so inconsistent as to be implausible" and found that they had not proved their cases. She also found their claims to be "manufactured or fraudulent". She therefore dismissed them and ordered the claimants to pay the insurance company's costs on an indemnity basis.
The claimants appealed on a number of grounds. One of these related to a decision taken by the judge on 23 June 2014 at the outset of the trial. On the application of the insurance company, made on the basis that fraud was alleged and the credibility of both claimants was in issue, she ordered that each claimant be excluded from court whilst the other was giving evidence. In so doing, she considered whether this would prevent them from having a fair trial in accordance with Article 6 ECHR but decided that it would not and that her order represented a fair balance of all the parties' interests. She concluded her short judgment on the point with the following observation:
"Accordingly, they will be so excluded and, in due course, if anything arises from it, any prejudice, if there is such prejudice, which I do not find there is, can be remedied by the fact that they can apply for a transcript."
The claimants argue that it was not open to the judge to make this decision and that, as each claimant was not only a witness in the proceedings but also a party to them, he had a right, at common law and pursuant to Article 6, to be present for the whole of the trial of the claim.
The judge's finding of fraud is challenged on the basis that she relied on various features of the evidence which she was not entitled to interpret as she did or which did not bear the weight she put on them.
The judge is also criticised for declining to hear argument on the burden and standard of proof and for failing to have regard to Hussain v Hussain and Aviva [2012] EWCA Civ 1367 (hereafter "the Hussain case") which the claimants argue is a key authority on the drawing of inferences of fraud. She directed herself, they argue, in accordance with authorities on the burden and standard of proof which had not been cited to her and upon which she did not give counsel the chance to address her. Furthermore, it is said, she repeatedly interrupted the claimants' closing submissions and gave the impression of having predetermined the result of the trial.
The judgment on the claim
The judge commenced her judgment with a statement of the law as she understood it to be, noting that it was for the claimants to prove their case that there had been an accident caused by the negligence of the first defendant and that they had suffered damage, and that a substantial evidential burden arose on the insurance company as a result of its allegation of fraud. She took it that fraud had to be established to the civil standard of proof. She cited a passage from Francis and Others v Wales and Churchill Insurance [2007] EWCA Civ 135 which stressed the need, when considering a fraud allegation, to stand back and view the evidence as a whole.
The judge set out the accounts that the claimants, Mr Andre Da Costa and Mr Da Silva, both Brazilians, had given in writing and in oral evidence. The judgment recounts features of the cross-examination of the claimants, during the course of which various inconsistencies in their cases were explored with them. However, for present purposes I will confine myself to the accounts which the judge distilled from elsewhere.
Mr Da Costa's account was that he had bought his motorcycle from a cousin, Mr Alex Da Costa, three weeks before the accident and was still paying for it by instalments. He had not yet transferred the registration certificate into his own name. He parked his motorcycle outside 43 Conway Road and was subsequently told that a vehicle had knocked over both his motorcycle and the motorcycle belonging to Mr Da Silva. He said that he went up to the driver of the vehicle, whom he did not already know. The driver gave no explanation but did identify himself as Mr Sargaco. Mr Da Costa said that he had been involved in three other accidents, none of them involving the motorcycle that had been in the accident with Mr Sargaco. He had sold that motorcycle on to a man named Jean shortly after it was repaired following the accident, but he had not retained Jean's contact details.
Mr Da Silva said that he purchased his motorcycle from a man named Lemar, though the registration certificate showed the owner as Mr Gile Silva. Mr Da Silva had not yet contacted the DVLA to change the name on it. He parked his motorcycle outside 43 Conway Road secured to Mr Da Costa's. He said that he was in his room later on when Mr Da Costa came to tell him about the accident. He went out and saw the motorcycles lying on the road and Mr Da Costa speaking to the driver.
The claimants relied on a witness, Mr Alan Melim, whose evidence was admitted in writing because he was overseas. The judge set out his account of the incident, which was that he had looked out of 43 Conway Road to see the motorcycles on the ground with the car stopped over them, and went to Mr Da Costa's room to tell him, whereupon Mr Da Costa went to Mr Da Silva's room to tell him and all three of them went outside, where the driver confirmed that he had hit the motorcycles and gave his name and address.
The defence case was entirely hearsay evidence. The judge referred to the statement obtained by an investigator from Ms Pereira who said, amongst other things, that to the best of her knowledge Mr Sargaco, who she described as an " ex-friend" of hers, never owned any car.
The judge found both claimants to be unreliable witnesses. At paragraph 26 of the judgment, she turned to consider their case about the accident, commencing:
"Well firstly, did the accident happen? I found their respective accounts so inconsistent as to be implausible."
In the following paragraphs, she identified deficiencies in those accounts which were divergent and/or incredible as to the timing of the accident, whether they shared a room at 43 Conway Road or had separate rooms, where they were when they were told of the accident by Mr Melim, where Mr Melim's room was in 43 Conway Road, who came outside at what point in the aftermath, and whether the driver offered any explanation. She also identified the impossibility of the motorcycles being chained together as the claimants said they were, given the timing of their respective arrivals home. This all led the judge to the following conclusion which she set out at the end of paragraph 28 of the judgment:
"I find that the accounts are so inconsistent the claimants have not proved their case".
At paragraph 29 of the judgment, the judge went on to consider the fraud allegation, which she introduced with the words "I also find the claim was manufactured or fraudulent upon the following basis". I will set out the six matters to which the judge then referred, using her own words:
i) "I do not accept that the claimants were sharing a room at 43 Conway Road. The first time they said so was in live evidence and it is contrary to Mr Melim's statement…..The evidence of the claimants is therefore inconsistent in that regard from one of their own witnesses."
ii) "I simply do not accept Mr Da Costa's evidence that he was living at 43 Conway Road." The judge supported this finding with reference to other documents in which Mr Da Costa's address was given as a property in Lansdowne Road and then, from 27 July 2011, Norman House.
iii) "[W]hilst multiple hearsay Ms Pereira stated that Mr Sargaco, the first defendant was her friend and had never owned a car or a bike."
iv) "Mr Da Costa said in his statement that he had seen the first defendant in the area but he had not spoken to him yet in evidence he said he had not. In short, in my view he was seeking to distance himself from the first defendant."
v) "[Mr Da Costa's] moped … has been involved in another road traffic accident on the 22nd November 2011 involving another member of the Brazilian community. It may be a coincidence but it is a factor I am entitled to weigh up standing back as I do and looking at the evidence overall as I am required to do."
vi) "I have also taken note of the fact that Mr Da Costa...
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Stuart A. Lockhart v Valentina Nonini and Maurizio Pandini
...B Surinder Singh Kanda v Government of the Federation of Malaya [1962] AC 322 applied; Da Costa and Another v Sargaco and Another [2016] EWCA Civ 764 applied; Attorney General of Zambia v Meer Care and Desai (a firm) and others [2006] EWCA Civ 390 applied. 2. The principles of natural jus......
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Stuart A. Lockhart v Valentina Nonini and Maurizio Pandini
...B Surinder Singh Kanda v Government of the Federation of Malaya [1962] AC 322 applied; Da Costa and Another v Sargaco and Another [2016] EWCA Civ 764 applied; Attorney General of Zambia v Meer Care and Desai (a firm) and others [2006] EWCA Civ 390 applied. 2. The principles of natural jus......