Joseph Ogiehor v Patrick Belinfantie
|England & Wales
|Court of Appeal (Civil Division)
|Lord Justice Lindblom,Lord Justice Irwin
|02 November 2018
| EWCA Civ 2423
|Case No: A2/2017/0650
|02 November 2018
Neutral Citation Number:  EWCA Civ 2423
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE CRYAN
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lindblom
Lord Justice Irwin
Case No: A2/2017/0650
The Appellant appeared in person
Howard Cohen (instructed by Plexus Law) for the Respondent
Hearing date: 10 October 2018
On 15 March 2016, the Appellant, a litigant in person, disclosed a “without prejudice” offer of settlement made by the Respondent during trial. As a result, the trial was adjourned and HHJ Cryan ordered that, unless the Appellant makes an interim payment in the sum of £10,000 within a 4 month period on account of the Respondent's costs thrown away, his claim would be struck out. Further case management directions, to follow should the Appellant make the interim payment, were also made in the order.
The Order was originally drawn in error to order payment of £11,000. On 2 March 2017, the order was varied by Leggatt J to require payment of £10,000 within 6 months. However, the Order was otherwise maintained.
This is a second appeal brought by the appellant against the order to make an interim payment. Permission to appeal was granted by Gloster LJ on 21 December 2017 in respect of grounds which are set out below.
These proceedings concern a personal injury claim brought by the Appellant, following a road traffic accident on 18 March 2011. Liability was admitted by the Respondent on 15 June 2011. A two-day trial was listed on 14–16 March 2016 on the issue of damages alone.
The claim as formulated whilst the Appellant was represented, was for damages in the region of £225,000/235,000, allowing for general damages. By the time of the relevant hearing, the Defendant's costs already stood at just under £110,000. The Appellant had lost his representation many months before, in mid-2015. There was no realistic prospect of him instructing fresh solicitors. He had reports from two experts supportive of his claim, a consultant neurosurgeon Mr Kirkpatrick, whose latest report is dated 25 February 2014, and a consultant psychiatrist Dr Baggaley, whose latest report is dated 15 June 2015.
In the process of investigation, the Respondent obtained video surveillance footage on various dates between 6 January 2013 and 5 November 2014 which, the Respondent alleges, shows that the Appellant exaggerated the injuries he suffered as a result of the accident on 18 March 2011. This evidence was reviewed by the experts instructed by the Respondent and incorporated into its Counter-Schedule of Loss. On the basis of this evidence, the Respondent alleged fraud against the Appellant.
By contrast, the video surveillance footage was not reviewed by the experts instructed by the Appellant, he says due to his inability to pay them to do so. The Appellant had been without representation for approximately nine months prior to the trial date. The Appellant was in default of an Order to serve a revised or further witness statement addressing the video surveillance evidence. There was no evidence at all from him addressing the surveillance material.
On 24 February 2016, the Respondent made an offer of settlement to the Appellant in the sum of £10,000, by way of a letter marked “WITHOUT PREJUDICE SAVE AS TO COSTS”. The Appellant did not accept this offer and the trial on quantum went ahead. The letter has necessarily been disclosed to us. It reveals that there was an earlier Part 36 offer, on 24 October 2012, in the sum of £22,500.
On the second day of trial, HHJ Cryan began the hearing by notifying the Appellant that he had now seen the video surveillance footage the Respondent sought to rely upon and asking the Appellant how he intended to respond. When addressing the trial judge, the Appellant revealed the contents of the Respondent's “without prejudice” letter, despite HHJ Cryan's efforts to warn him that the letter was “without prejudice” and he should not introduce it. The Appellant acknowledged the “without prejudice” heading at the top of the letter yet, perhaps not appreciating its significance, continued to reveal its contents. The background to this is significant.
Although there is no precise record of it, it is clear that there was discussion outside court between the Appellant and Mr Cohen for the Defendant/Respondent, before the hearing on 14 March 2016. That included discussion of the video surveillance evidence. It is clear that there was mention of the fact that it would be suggested the Appellant had exaggerated his claim, and that the surveillance evidence would reveal that. It is also clear that it would be put to the Appellant that he had been lying, and there was discussion in some terms of the claim being fraudulent, and that a prison sentence of up to two years for contempt might be in question.
We have not been provided with a transcript or audio recording of what transpired on that day. However, the facts were set out by the judge in his judgment of the following day, 15 March 2016:
“4. The dispute between the parties, however, is a very real one because the defendant asserts that the claimant has grossly exaggerated his case and has sought, to a level which amounts to fraud according to the defendant, to mislead the medical experts and to mislead the court, and that position is one which they seek to establish by reference to the video recordings which, until I concluded watching them this morning, I had not seen.
5. The matter, when it came on before me yesterday, dealt with various case management matters and I was requested, amongst other things, by counsel for the defendant to explain the court's powers in relation to fraudulent claims because I was told that the claimant would not listen to what was being said to him by counsel for the defendant and said he would rather hear it from the court. At that stage, I must emphasise, that I had not seen any of the video evidence and I had not a very commanding view of the case. I was aware of the defendant's case in the counter-schedule and I explained to the claimant, in the most neutral terms possible, what the law was and how the court might react in relation to a fraudulent claim.
6. I emphasise that I was entirely satisfied that the claimant understood that I was making no judgment whatsoever about his case and, indeed, I was at pains to encourage him to continue to litigate if he had confidence in the integrity of his case. It is no part of this court's function – and never can be or never will be – to discourage honest litigants from bringing their claims before the court.”
On the afternoon of 14 March it was discovered that the Appellant had not paid the court fee for the trial. The judge arranged for the PSU to assist him with a waiver application that day, which would enable the case to proceed.
It is the Respondent's case that, before the hearing commenced on 15 March, there was further discussion between counsel and the Appellant, in the course of which and amongst other matters, counsel warned the Appellant not to mention the “without prejudice” letter to the Court. In the course of his remarks to us, the Appellant directly denied that he had been warned about this, either outside the courtroom or inside the courtroom before the judge entered. Unusually, this Court has been supplied with an audio recording of the proceedings on 15 March, which includes a recording of conversation between Counsel and the Appellant in the courtroom before the judge entered. It is sufficient to say that the recording supports the Respondent's assertion on this point.
The judge dealt with events after he came into court as follows:
“9. There then followed, however, a most unfortunate event. Because I was entirely unclear what his case was in relation to the surveillance evidence which by then I had watched, I enquired of the claimant about his case. Permission had been given for the claimant to file a statement dealing with the surveillance evidence, if so advised, by the 28 th August and he had not done so. There was a letter which the court's attention was subsequently drawn to, which spoke of aspects of the claimant's approach to the video surveillance but there was no statement signed under a statement of truth and no comprehensive evidence dealing with the impact of the surveillance evidence or the claimant's response, which was clearly something which would be likely to be material to any trial that was going to go ahead.
10. I asked the claimant what his position was because I had had the opportunity to note that in recent expert medical evidence before the court it was said that the claimant could not lift heavy objects and, indeed, could not drive. Yet in the video evidence which, by then which I had seen, there was clear footage of the claimant lifting relatively heavy objects, certainly much heavier objects than he had indicated he could lift; and, indeed, driving quite a bit.
11. It was subsequently drawn to my attention in relation to the driving that in his recent statement he said he was unable to drive and no longer owned a car. He had stopped driving because it was difficult for him to turn the steering wheel with his right hand and he did not feel sufficiently in control. That was his own statement and yet the video evidence showed him driving frequently, using both hands on the steering wheel and having obvious control of the vehicle.
12. Before I had said very much on the subject at all however the claimant insisted on referring to a letter. It seemed to me that that letter might be one containing an offer, as in the light of what he was beginning to say it might be a “Without Prejudice” letter. I...
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