UK Insurance Ltd v Stuart John Gentry
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Teare |
| Judgment Date | 18 January 2018 |
| Neutral Citation | [2018] EWHC 37 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ16X01047 |
| Date | 18 January 2018 |
[2018] EWHC 37 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Teare
Case No: HQ16X01047
Marcus Grant (instructed by Keoghs LLP) for the Claimant
The Defendant represented himself
Hearing dates: 18, 19 December 2017
Judgment Approved
This is a claim by the Claimant, an insurance company, for damages in the sum of £226,458 plus interest and costs from the Defendant, Mr. Gentry, on the grounds that Mr. Gentry fraudulently represented to the Claimant that his Range Rover motor car had been in collision with a Peugeot motor car driven by Mr. Miller who was insured by the Claimant.
The collision is alleged to have occurred on 17 March 2013 in Hampshire at the junction between Folly Farm Road and the A339. The litigation which ensued from then until February 2016 is described by the Court of Appeal in its judgment dated 25 February 2016; see [2016] EWCA Civ 141 at paragraphs 3–10 per Vos LJ. I need not recite the details but in short Mr. Gentry commenced proceedings in the Liverpool County Court against Mr. Miller on 3 July 2013 and obtained judgment in default of acknowledgment of service on 8 August 2013. On 17 October 2013 damages were assessed in the sum of £75,089. In February 2014 the Claimant obtained information which suggested to the Claimant that if the collision had occurred at all it had been staged. The default judgment was set aside on 17 March 2014 but the Court of Appeal reinstated the judgment on 25 February 2016. However, a stay of execution was ordered on terms that the Claimant commenced an action seeking damages for deceit.
That action was commenced on 22 March 2016. Mr. Gentry filed a defence on 20 May 2016 alleging that the collision had indeed occurred as he had alleged. The trial was to have taken place in May 2017 but the trial date was vacated because of injuries received by Mr. Gentry in another collision. At the trial of the action in December 2017 Mr. Gentry represented himself. He had not served a witness statement either from himself or from any other person. He nevertheless told me that he maintained that there had been a collision as he had alleged. At the close of the Claimant's case on 18 December 2017, the first day of the trial, he said that he wished to call Mr. Voller to give evidence. Mr. Voller was, it was said, a passenger in Mr. Gentry's car at the time of the alleged accident. Mr. Voller could not attend court on the first day of the trial but could do so on Tuesday 19 December 2017, the second day of the trial. I gave Mr. Gentry permission to call Mr. Voller for reasons given in the afternoon of 18 December 2017. In short, justice required permission to be given in circumstances where there was an outstanding application to commit Mr. Gentry for contempt and the length of any sentence imposed for contempt would or might depend upon whether there had been a collision or not. On the second day of the trial Mr. Gentry called Mr. Voller to give evidence. No other evidence was adduced by Mr. Gentry.
Reports of the collision and notification of claims
On 18 March 2013 Mr. Miller reported the collision to the Claimant in a 23 minute telephone call of which there is a transcript. He referred to his car as a “Grey Golf” which, it is common ground, was an error. He explained that a deer had jumped out from the other side of the road and had run across causing Mr. Miller to swerve in order to miss it. He then hit a car which was waiting at the junction. He said “the bloke I hit had a guy in his car” and that he had the name of the driver “on a bit of paper”. He gave the Claimant the name, address and telephone number of Mr. Gentry. He said he thought Mr. Gentry was younger than him. He described Mr. Gentry as “really pee'd off because it was his car and he was screaming at me”. He said there was a male passenger in the front seat who looked “quite young, mid 20s.”
On 24 March 2013 the Claimants wrote to Mr. Gentry accepting that Mr. Miller was at fault for the accident and saying that they would supply a free hire vehicle whilst Mr. Gentry's vehicle was off the road.
On 26 March 2013 Mr. Gentry entered into a Rental Agreement for the hire of a Mercedes vehicle (but not with the Claimant). He rented it for 150 days until 22 August 2013 for a total cost of £56,540 (or £317.93 per day).
On 27 March 2013 Mr. Gentry's then solicitors issued Claim Notification Form TRA 1. He claimed to have suffered soft tissue whiplash injury and to have been off work for 4 days.
On 28 March 2013 Mr. Voller (the passenger in Mr. Gentry's car) also issued a Claim Notification Form TRA 1. He also claimed to have suffered soft tissue whiplash injury and to have been off work for 4 days.
On 19 June 2013 Mr. Miller telephoned Privilege Damage Management (who appear to be part of or related to the Claimant) and informed them that he had seen “the guy that I hit” in the supermarket and that the latter had asked what was going on with the insurance company; he was “still in a hire car”. Mr. Miller said that he would check up. Privilege Damage Management replied that they had had difficulty contacting him. By contrast, the account of the facts given by the Court of Appeal shows that Mr. Gentry's solicitor had sent several letters to the Claimant between 8 April and 14 June 2013 (see p.4 of the judgment).
Proceedings and payments
On 5 April 2013 the Claimant paid Mr. Miller £225 in respect of the value of his car.
On 3 July 2013 Mr. Gentry issued a Claim Form against Mr. Miller claiming damages between £50,000 and £100,000.
On 29 July 2013 the Claimant paid Mr. Gentry the sum of £14,000 in respect of the value of his car.
On 13 February 2014 Mr. Voller's claim for damages for personal injuries was settled in the sum of £1600 and the Claimant agreed to pay costs of £1240.
On 14 February 2014 the Claimant informed Mr. Voller's solicitors that “information had come to light” and as a result “all prevous offers …are now withdrawn”. The two cheques in respect of Mr. Voller's claim were stopped. Although notice of a claim by Mr. Voller was given on 15 March 2016 no proceedings have in fact been served.
The Claimant's suspicions
In February 2014 the Claimant conducted Face Book, Twitter, Linked In and Experian searches which indicated that the Defendant and Mr. Miller were known to each other before the alleged collision and had taken part in cross-country running events together. As a result the Claimant suspected that there had not been a genuine accident.
The Claimants sought an order setting aside the judgment in default which had been entered in favour of Mr. Gentry. The Claimant's case was “insofar as collision did occur it was staged and that [Mr. Gentry's] claim is fraudulent.”
Mr. Gentry's response
In his witness statement dated 15 March 2014 Mr. Gentry described the allegation that the accident was not genuine as untrue and being “mischief making”. He said that prior to the accident on 17 March 2013 he had not known Mr. Miller. He explained that at the scene of the accident Mr. Miller had told him that his son had died of Sudden Infant Death Syndrome and that after the accident he had kept in touch with Mr. Miller and that they had become friends on Facebook. Mr. Gentry had taken part in running events with Mr. Miller to raise money for a charity which supported families affected by Sudden Infant Death Syndrome. With regard to the Claimant's evidence that he and Mr. Miller had participated in a race on 23 February 2013 he said that that Mr. Miller was not the same Mr. Miller who had been involved in the accident on 17 March 2013. He exhibited to his statement a photograph which he said was of the Mr. Miller who took part in the race.
There is no dispute that Mr. Gentry's witness statement dated 15 March 2014 contained statements which were untrue. He now accepts (since at least 20 May 2016 when he served his defence in this action) that he did in fact know the Mr. Miller who drove the Peugeot before 17 March 2013. It is accepted that they had engaged in cross-country racing before 17 March 2013. His elaborate explanation of how they only became friends after 17 March 2013 was untrue. Facebook records show that he was aware in 2011 of the loss of Mr. Miller's son. The photograph he said was of another Mr. Miller was in fact of another of Mr. Gentry's friends, a Mr. Sullivan, who, as it happened, took the place of Mr. Miller in the run of 23 February 2013. On 16 March 2013, the day before the alleged collision, Mr. Gentry, Mr. Miller and Mr. Sullivan had run in a cross-country race. He said in his defence that he had not disclosed his “prior knowledge of Mr. Miller” so as “not to slow down the very genuine claim.” Before this court he apologised for his dishonesty.
The burden of proof on the Claimant
The Claimant has brought this claim for damages for deceit and therefore bears the burden of proving that Mr. Gentry dishonestly represented to the Claimant that his car had been struck by Mr. Miller's car on 17 March 2013 in a genuine collision at the junction between Folly Farm and the A399. That burden must be discharged on the balance of probabilities but since the allegation against Mr. Gentry is of criminal behaviour, which is inherently unlikely, particularly cogent evidence is required before the court can properly be satisfied on the balance of probabilities that he acted in the manner alleged. The need for cogent evidence in this context is apparent from other cases where a party alleges criminal conduct in a civil case; see for example Parker v National Farmers Union Mutual Insurance Society [2012] EWHC Comm at paragraph 6 and 103 (where an insurance company...
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