Martin Raymond Owens v Mark Noble

JurisdictionEngland & Wales
JudgeLady Justice Smith,Lord Justice Elias,Lord Justice Sedley
Judgment Date18 March 2010
Neutral Citation[2010] EWCA Civ 284,[2010] EWCA Civ 224
Docket NumberCase No: B3/2009/0912
CourtCourt of Appeal (Civil Division)
Date18 March 2010
Between
Martin Raymond Owens
Appellant
and
Mark Noble
Respondent

[2010] EWCA Civ 224

Mr Justice Field

Before: Lord Justice Sedley

Lady Justice Smith

and

Lord Justice Elias

Case No: B3/2009/0912

HQ07X03533

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

Andrew Hogarth QC & Catherine Peck (instructed by Messrs Clarke Willmott LLP) for the Appellant

Clive Freedman QC & William Latimer-Sayer (instructed by RWPS LLP) for the Respondent

Hearing dates: 26/27 January 2010

Lady Justice Smith

Lady Justice Smith:

Introduction

1

On 2 September 2003, Mr Mark Noble was seriously injured when his motor cycle was in collision with a car driven by Mr Martin Raymond Owens. Mr Owens admitted liability for Mr Noble's injuries and, on 11 March 2008, Field J assessed damages in the sum of £3,397,766.49 inclusive of interest. The basis of the award was that Mr Noble's mobility was severely restricted and would remain so. He was dependent on crutches and a wheelchair. He would never work again and would require a good deal of assistance with daily living. Mr Owens' insurers did not appeal that judgment at the time and the judgment was fully satisfied.

2

In the autumn of 2008, the insurers received confidential information to the effect that Mr Noble did not appear to be as seriously disabled as he had claimed. They arranged to have him watched and filmed. Between December 2008 and March 2009, Mr Noble was filmed on seven occasions, each time for several hours. He could be seen walking about in a yard on his premises without the aid of crutches or a stick. He drove a dumper truck. He was seen sawing wood and moving a number of items. He was seen to stretch and bend without apparent difficulty. The insurers took the view that the picture presented on these films was so different from that presented at the trial that the only inference to be drawn was that Mr Noble had made a far better recovery than he had claimed and that he had deliberately misled the court as to the gravity of his continuing disabilities.

3

The insurers applied to Field J, without notice to Mr Noble, for an injunction restraining Mr Noble from dissipating the remainder of his damages. It was known that he had bought a substantial property in which he was living with his partner. Field J saw parts of the films and declared that he would not have imagined that Mr Noble would have been able to do the things he could be seen doing on the films. He granted a temporary injunction in respect of £2.25 million on the insurer's undertaking to file an application to appeal to this court out of time relying on the fresh evidence of the films. That injunction, in slightly varied terms, has been extended by consent pending the outcome of this appeal.

The application for permission to appeal

4

Both parties attended the hearing before Moses and Maurice Kay LJJ of the application for permission to appeal, represented by counsel. Mr Andrew Hogarth QC for the appellant insurers submitted that the evidence of the films and other evidence obtained since the films were taken should be admitted as it satisfied the criteria for the admission of fresh evidence as set out in Ladd v Marshall [1954] 1 WLR 1489. In the light of that evidence, it was arguable that the judgment of Field J should be set aside and the assessment of damages should be retried. Mr Clive Freedman QC for the respondent accepted that the fresh evidence of the films should be admitted. His argument was that permission to appeal should be refused because the appellant's proper remedy in a case in which fraud was alleged was to commence a fresh action to set aside the original judgment. The court granted permission to appeal, expressing the view that it seemed likely that the full court would prefer Mr Freedman's submission but that it was arguable that Mr Hogarth was right and that the case might be sent back for rehearing.

The hearing of the appeal—the evidence

5

Before this court, it was agreed that all the fresh evidence should be considered. We saw a compilation of the video evidence and read additional evidence put in by both sides. I do not propose to say much about the fresh evidence because it will not be necessary for me to give more than a broad indication of the impression that it made upon me. I do not wish to do more than that as I might risk influencing the judge who will have to consider this evidence in the future. I will describe the evidence only to the extent necessary to explain the contentions which the parties claimed that it supported.

6

In addition to the video evidence which I have already described, the appellant submitted further expert reports to support the contention that the only realistic explanation for the difference between the degree of mobility contended for at trial and that seen on the films was that Mr Noble had intentionally deceived the court at trial.

7

The respondent put in evidence strongly disputing that he had been guilty of any deception. He said that, although on the films he was seen walking and driving a dumper truck, he could do these things only on 'good days'. He is still gravely disabled and often needs his crutches or wheelchair. He has improved to some extent since the trial because he has worked hard at his physiotherapy and has been determined to do as much for himself as possible. Moreover, the way in which the appellant was now describing his condition at the trial was inaccurate. He had made it plain at the trial that he was able to do some things for himself.

8

We heard detailed submissions about the picture of Mr Noble's disability which had been painted at the trial and that which was now given by the new evidence. Mr Hogarth submitted that the contrast was stark. Mr Freedman argued that Mr Noble's activities on the films were quite explicable and not inconsistent with the account that he had given at trial.

Legal submissions

9

Mr Hogarth accepted that, in cases where a party seeks to set aside an established judgment, there is a tension between two public interests: the need for finality in litigation and the need to ensure that the court is not misled. He accepted that a judgment will not lightly be overturned but, he submitted, where there is evidence that the judge might have been deliberately misled, the need for finality had to give way and the right course is to order a retrial. In support of that proposition he cited the well-known passage from the judgment of Denning LJ, as he then was, in Ladd v Marshall where at page 1491 he said:

“It is very rare that application is made this court for a new trial on the ground that a witness has told a lie. The principles to be applied are the same as those applied when fresh evidence is sought to be introduced. To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in the other words, it must be apparently credible, though it need not be incontrovertible.”

10

In addition to Ladd v Marshall, Mr Hogarth cited a number of other cases in which this court or the House of Lords had received fresh evidence suggesting either perjury or some other sort of fraud and had ordered a retrial without making an actual finding of fraud. These included Skone v Skone and Another [1971] 1 WLR 812, Roe and Another v Robert McGregor and Sons Ltd [1968] 1 WLR 925 and De Beauville v Swycher and Co and Another [ Unreported 22 November 1999]. He relied also on dicta of the Court of Appeal (Lord Phillips MR, Sedley and Hale LJJ) in Hamilton v Al Fayed [2000] EWCA Civ 3012 where, after citing the passage from Ladd v Marshall which I have quoted above, Lord Phillips continued at paragraph 13:

“13. These principles have been followed by the Court of Appeal for nearly half a century and are in no way in conflict with the overriding objective. In particular it will not normally be in the interests of justice to reopen a concluded trial in order to introduce fresh evidence unless that evidence will probably influence the result.

14. Often the fresh evidence relied upon demonstrates that perjured evidence was given at the trial. In such circumstances, provided that the requirements of Ladd v Marshall are satisfied, the practice of the Court of Appeal has been to order a new trial without resolving the issue of whether the alleged fraud in fact occurred.”

11

Mr Hogarth's submission was that this line of authority demonstrated that, where the three conditions of admissibility are satisfied, the usual result will be that this court will order a new trial. This court does not have to find that the court below was deliberately misled; it is enough if the evidence shows a good prima facie case that that occurred. He submitted that, in the present case, the fresh evidence now admitted was sufficiently clear that this court should hold that the award of Field J could not stand. This court should set it aside and send the assessment of damages back for rehearing.

12

Mr Freedman for the respondent submitted the correct course was to dismiss the appeal and to leave the appellant to start a fresh action if so advised.

13

He began by stressing the need for finality in litigation. He cited a passage from Mulholland v Mitchell [1971] 1 AC...

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