Quarcoo v Ensure Services Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Longmore,Lord Justice Richards |
| Judgment Date | 28 April 2009 |
| Neutral Citation | [2009] EWCA Civ 595 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2008/1766 |
| Date | 28 April 2009 |
[2009] EWCA Civ 595
The Vice President, Civil Division
(Lord Justice Waller)
Lord Justice Longmore and
Lord Justice Richards
Case No: B2/2008/1766
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
(MR RECORDER BALDWIN QC)
Mr M Grant (instructed by Keoghs) appeared on behalf of the Appellant
The Respondent did not appear and was not represented.
(As Approved)
Lord Justice Waller:
This is an appeal against the refusal by Mr Recorder Baldwin QC to make an order for indemnity costs against the claimant, Mr Quarcoo, after dismissing his claim against his insurers, judgment being given on 10 June 2008.
The Recorder refused permission to appeal his costs order but permission was granted by a single Lord Justice, Rix LJ. The Recorder in refusing an order for indemnity costs, recognised that he had found Mr Quarcoo dishonest but refused indemnity costs on the basis that the case was not “outside the norm”, that phrase coming from a Court of Appeal decision Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson & Ors [2002] EWCA Civ 879, a decision to which I shall return.
It is right to say at the outset that it is only Mr Grant for the appellant insurers who has appeared before us today. Mr Quarcoo has not appeared and is not represented, and thus has not made any submissions.
It seems that Mr Quarcoo was sent correspondence by the solicitors for the insurers informing him that the appeal was to proceed, and those letters were addressed to Mr Quarcoo personally at an address which the solicitors had obtained. It further seems the solicitors for the insurers had no response from Mr Quarcoo and thus it would appear, on the assumption he received those letters, that he never intended to take any part in the appeal.
So far as the fixing of the date of this appeal is concerned, that is something which was notified to the parties by the Civil Appeals Office. The Civil Appeals Office communicated on various aspects of this appeal with the solicitors who acted for Mr Quarcoo in the court below, but the appeals office were told by that firm of solicitors, ultimately, that they no longer acted for Mr Quarcoo. Indeed it seems from the file that those solicitors were not prepared to provide any further information to the Civil Appeals Office as to the residence of Mr Quarcoo.
It seems likely therefore that Mr Quarcoo was never notified of the date when this appeal would be heard. Clearly if someone has not appeared on the appeal and would have wanted to do so and if they have not received a notification of the date of the appeal and if the court proceeds in their absence, they should have an opportunity of returning to the court in order to seek to set aside any order that the court has made. Having consulted my colleagues, what we decided we should do is that we should proceed to give judgment on the basis that Mr Quarcoo has never wished to appear on this appeal, but if that turns out to be a misapprehension, then we recognise that he may be entitled to come back to the court and apply to reopen the appeal. In order to ensure, so far as possible, that Mr Quarcoo has that right, Mr Grant has given an undertaking on behalf of his clients that they will serve a copy of the order that will result from the appeal on which I am about to give judgment and that they will also serve on him a copy of the judgment, which will indicate to him his right to re-open the matter if he has good reason as to why he did not appear today wishing to do so.
But with that preliminary I now turn to the circumstances of this case and how the issue arose. Mr Quarcoo was the owner of a BMW, which he alleged had been stolen, and on the basis of the allegation that the car had been stolen he made a claim under his insurance policy with Esure, the appellants. The claims handler on behalf of Esure, a Mr Harvey, carried out investigations of that claim and Esure ultimately refused to pay under the policy. They refused on a number of bases, including non-disclosure, but primarily on the basis that the claim was a dishonest one, maintaining that this BMW had in fact never been stolen.
One critical factor on which they relied for asserting that the claim was a dishonest one was that after the claim was reported to them by Mr Quarcoo they requested that he send them the four keys of the car which he maintained he still held. Mr Quarcoo forwarded four keys to the insurers and their claims handler. Investigations were carried out by the insurers, and those investigations indicated that one of the four keys came from a different BMW, previously stolen, so they refused to pay under the policy.
Mr Quarcoo then commenced proceedings. In his witness statement in those proceedings he suggested that the claims handler had substituted the rogue key for a genuine key, and although that attack was not maintained in cross-examination of Mr Harvey at the trial, it seems that Mr Quarcoo was prepared to confirm that witness statement when he came to give evidence.
The Recorder found that Mr Quarcoo was dishonest. It is right to say that the insurers were asserting that they could establish dishonesty but, in the alternative, they were in any event saying the burden was on Mr Quarcoo to establish that his car was stolen. It is in that context that the Recorder in the final paragraph of his judgment dealing with the merits of the claim said that he found that Mr Quarcoo had not satisfied the court that his car was in fact stolen. But Mr Leonard, Counsel who represented Mr Quarcoo before the Recorder, had accepted, as the Recorder records at paragraph 3 of his judgment, that although the burden of proof was on the claimant, any finding against Mr Quarcoo would necessarily involve a finding of dishonesty against him. Counsel made that submission to seek to persuade the Recorder that it was unlikely that Mr Quarcoo would make a dishonest claim, but it would seem clear that it also recognised the reality.
Ultimately the Recorder found that Mr Quarcoo had told a number of lies on certain matters which the Recorder relied on as supporting Mr Quarcoo's lack of credibility generally. He found, for example, that Mr Quarcoo had related different stories when giving an explanation as to why he had not disclosed the previous claim against the insurers. The Recorder summarised the position so far as that was concerned in paragraph 30 of his judgment in these words :
“In giving these three different stories, Mr Quarcoo presented himself as someone who would say anything if he believed it helped him out of a particular predicament.”
He also found that he had told a lie about the mileage on this BMW, and he summarised the position in paragraph 30 of the judgment in this way:
“I am satisfied that Mr Quarcoo knew that he was underestimating the mileage on his car. He conceded that he appreciated that the mileage would have an effect on the value, so he had a motive to underestimate.”
And against those findings of credibility ultimately the Recorder reached this conclusion, recorded at paragraphs 36 and 37 of the judgment:
“36. Mr Leonard stressed to me that it was very significant for me to find that Mr Quarcoo deliberately misled his insurer and that there was not enough evidence given to reach that conclusion. But I am satisfied that there is no other explanation for the events I have found.
37. Mr Quarcoo would not admit the possibility that the keys he had sent in were other than the genuine keys. He said there were no other keys which could have been swapped without his knowledge. From his description of his relationship with his wife and his control of the keys to his car, I am satisfied that he was in control of the keys which were dispatched to Mr Harvey and he sent in three keys for his BMW and one other. I infer that he hoped that Mr Harvey would not spot the difference.”
And he then continued:
“38. That leaves the question of the remaining key and what happened to it. This is a sophisticated car that cannot be driven away without the special BMW key, or so the evidence strongly indicates. There is a possibility that Mr Quarcoo's [car] was lifted from its parking place in Salisbury Road, without Mr Quarcoo's consent and was taken by some unknown thief. But the fact that Mr Quarcoo appears to have retained one of the genuine keys, despite asserting that he did not do so, is to my mind highly significant.
39. In these circumstances Mr Quarcoo has not discharged the burden of proving his car was taken without his consent, accordingly, the claim fails.”
In my...
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