Luul Michael v I E & D Hurford Ltd T/A Rainbow
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Stacey |
| Judgment Date | 17 August 2021 |
| Neutral Citation | [2021] EWHC 2318 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB/2020/027 |
[2021] EWHC 2318 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Leeds Combined Court Centre
1 Oxford Row
Leeds LS1 3BG
THE HONOURABLE Mrs Justice Stacey
Case No: QB/2020/027
No appearance or representation by the Claimant
Mr William Poole (instructed by DAC Beachcroft Claims Ltd) for the Defendants/Appellants
Hearing date: 18 May 2021
Approved Judgment
THE HONOURABLE Mrs Justice Stacey
The appellants in this appeal were the defendants before Leeds County Court in a road traffic accident claim in which judgment for the claimant, Luul Michael, was entered for £3,624.18 after trial on 14 September 2020. The Court then rejected the appellants' application to dismiss the claim on the basis that the respondent had been fundamentally dishonest in relation to the primary claim or a related claim pursuant to s.57(1)(b) Criminal Justice and Courts Act 2015 (“the Act”), which is the subject of this appeal. Permission to appeal was given by the trial judge, Mr Recorder Cameron. A challenge to the quantum award and costs order for which permission had been given by Mr Justice Griffiths on 21 February 2021 was withdrawn part way through the appeal hearing.
The respondent did not appear and was not represented at today's hearing. An application dated 17 March 2021 by his solicitors NNE to come off the record had been returned to them, unissued, as it did not comply with the rules. No rule compliant amended application has been re-submitted and they thus remain on the record. It was unclear if their client, the respondent, was aware of the hearing.
The single issue in this appeal is the correct approach to s.57 of the Act.
Background facts and judgment below
On 7 November 2018 the respondent was involved in a road traffic accident whilst working as an Uber driver in his Hyundai i30 Active Blue CRD with a passenger on board. An employee of the first appellant was driving a company Land Rover Defender travelling immediately behind the respondent and drove into the back of the respondent's vehicle as it was moving off from traffic lights on the A58 in Park Lane, Leeds. The second appellant is the insurer of the first appellant.
The Recorder found that there was no doubt that the collision occurred and no doubt that responsibility for the collision lay entirely with the first appellant's employee who had negligently driven into the back of the respondent's vehicle in breach of his duty of care to the respondent as another road user. The appellants accepted that the respondent's vehicle was written off from the damage caused by the collision and that their insured was responsible. The respondent received a cheque from the second appellant within 5 weeks of the accident on 10 December 2018 for £4,200 representing the value of the vehicle at £4,700 less salvage value of £500 as assessed by an engineer instructed by the respondent's solicitors.
Three heads of loss were in dispute at trial: a claim for credit hire, a claim for physiotherapy and the quantum of the personal injury damages.
The appellant made a number of preliminary applications at the outset of the hearing, one of which is relevant for the purposes of this appeal. In the notice of application to the fast track of 30 October 2019 District Judge Hesford had made an order that the respondent be debarred from relying upon the fact of impecuniosity for the purposes of determining the appropriate rate of hire unless he had served copy bank and credit card statements for the period three months prior to the accident and during the period of hire by 4pm 11 December 2019. It is a standard order in cases of this type where credit hire rates are being claimed since it is only where a claimant can, amongst other things, demonstrate an inability to obtain more competitive car hire rates on the open market from the likes of Avis, Easycar etc that a court will entertain car hire rates at the level charged by credit hire companies. Although some bank statements were provided there was a gap from between 12 September 2018 to 11 November 2018. The Recorder accepted the appellants' submission that the absence of statements for that short period amounted to non-compliance with the order and that there should be no relief from sanction. The respondent was therefore debarred from relying on the fact of impecuniosity in his car hire claim.
The Recorder ruled against the appellants on all the various other preliminary issues raised including a strike out application. There is no appeal in respect of the other applications which are not relevant for the purposes of this appeal.
The statements of case consisted of the particulars of claim and defence and a reply to the defence that DJ Hesford had ordered on 30 October 2019 for the respondent to set out all facts in support of the assertion that he was impecunious at the commencement of and during the hire agreement.
The trial itself commenced at 12.30pm. The respondent gave evidence and was the only witness in the case.
Although dishonesty was not pleaded by the appellant as the defence had merely made no admissions and put the respondent to strict proof as to his losses with particular focus on the credit hire claim, Mr Poole repeatedly put to the respondent that he was dishonest and lying in his evidence and that some of the documents were fraudulent. No point was taken on this by the respondent's counsel or the judge and the issue of dishonesty was at the heart of the appellants' case. There were some inconsistencies in the evidence before the Court which were explored at length by Mr Poole with the witness. The respondent denied that he was lying or being dishonest and gave his explanations for the discrepancies to the Court. The Recorder found that the respondent was not dishonest and that his oral evidence was credible and true.
The respondent was awarded the sum of £524.18 for the replacement hire vehicle calculated as 16 days at a weekly rate of £229.33 and not the £7,728.00 claimed for credit hire in the particulars of claim and schedule of special damage.
The respondent's claim included a claim physiotherapy. In the respondent's written witness statement, which stood as his evidence in chief, the respondent stated that Dr Amin, the GP instructed by his solicitors for the purposes of preparing a report for the claim, told him he “might benefit from physiotherapy to help aid faster recovery. I obtained this as I feel that it helped.” 8 physiotherapy sessions at £100 per session were claimed for in the particulars of claim. This head of loss was supported by documentary evidence consisting of an invoice and a 2 page report or summary which was accompanied by detailed notes of some 8 treatment sessions seemingly compiled by the physiotherapist. The Claimant had signed a disclosure statement on which these documents were all listed. In cross examination the respondent was asked about the physiotherapy treatment. He initially appeared not to understand the word physiotherapy, but when it was explained that it was the treatment recommended by Dr Amin he said that he had attended one physiotherapy session and had been given various exercises to do at home. He confirmed that he had attended just one session. When asked why he had claimed £800 for physiotherapy he replied:
“Where….where is it I don't know, I…..”
and his answer appears to have tailed off or perhaps he was interrupted. He continued
“It just makes me confusing, you know, everything that I —-”
and he appears to have been interrupted or tailed off again. It was then put to him that he had made a false claim. He said:
“I didn't claim for false, so I examined and told to do physiotherapy. Is it a physiotherapy, I… I don't know what you mean”
and in answer to the next question
“I don't know, you're just confusing me.”
The appellants' counsel submitted to the Recorder that the physiotherapy document was some sort of fraud designed to exaggerate the respondent's claim. The respondent denied it.
Faced with the conflict of evidence of whether the respondent had received none, 1 or 8 physiotherapy sessions, the Recorder carefully set out his analysis of the evidence before him. He noted that the respondent had been genuinely confused in some of his evidence and was “rather a poor historian with limited immediate recollection of events and some confusion over perhaps what is and is not important in deciding a case of this nature.” He was also “rather soft spoken and was perhaps sometimes difficult to understand in the course of his evidence.” The Recorder stated that although he was “not absolutely persuaded that the evidence that there was only one session of physiotherapy is correct”, bearing in mind the burden and standard of proof, he preferred the oral evidence of the respondent to the unsigned physiotherapy document that had no statement of truth and which was not in the form of an expert report. The Recorder made an award of £100 in respect of this head of claim.
The respondent had two jobs: he worked part time as an Uber private hire driver and 3 days a week for Asda supermarket. He had not mentioned working for Asda in his witness statement and nor was it set out in the reply but his Asda wages were evident from his bank statements. When asked in cross-examination if his only occupation was as a private hire taxi driver he immediately explained that he had another job....
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Marwan Elgamal v Westminster City Council
...[2020] EWHC 2095 (QB) (Martin Spencer J). I have also considered the judgment of Stacey J in Michael v I, E and D Hurford Ltd and anr [2021] EWHC 2318 (QB). 61 The case law shows that the statutory requirement of “fundamental dishonesty” requires separate consideration of two questions: wh......