England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(JUDGE RICHARD SEYMOUR QC, Sitting as a Deputy Judge of the High Court)

		Royal Courts of Justice Strand London WC2 Wednesday, 19th June 2002

Wednesday, 19th June 2002

1. LORD JUSTICE SCHIEMANN: Sir Swinton will give the first judgment.
2. SIR SWINTON THOMAS: This is a renewed application for permission to appeal from an order of His Honour Judge Richard Seymour QC sitting as a Deputy High Court Judge on 28th February 2002 when he dismissed the claimant's claim and gave judgment for the defendants on their counterclaim together with various ancillary orders. Permission to appeal was refused by Latham LJ on 16th May.
3. The claim was made by Mr Syed Uddin and Mr Kamal Uddin against the Norwich Union. The claim arose out of a fire which occurred at 3 Benedict Road, Mitcham, on 30th November 1999. The claimants are brothers. Both are married and Syed Uddin has several children. The policy on the house was taken out on 12th February 1999 covering damage caused by fire. There were conditions in the policy, the important one being:

"Insurers will act in good faith in all their dealings with you. Equally the payment of claims is dependent upon your own observance of the following:

Your recognition of Insurer's' rights;

(o) to refuse to pay you if any part of your claim is false."

4. The claimants made claims for damage to the house caused by fire, loss of property and, importantly from the point of view of this claim, the alleged costs of obtaining alternative accommodation for some members of the Uddin family. The defendants alleged that this latter claim was false and dishonestly made. It was alleged by the claimants that members of the family had lived for a period of some weeks at 117 Whatley Avenue, Raynes Park, London SW20, a house owned by a Mr Zaidi and referred to by the judge in his judgment as "the Zaidi House".
5. In his judgment the judge related the relevant facts and then set out the evidence that he heard from Mr Syed Uddin at a little length. He then made his findings in relation to Mr Uddin's evidence. At paragraph 24 of the judgment the judge said:

"It is apparent from what I have set out already in this judgment that Mr Syed Uddin has given rather different accounts on different occasions of matters relevant to the arrangements allegedly made for members of his family to be accommodated at the Zaidi House."

6. Later on towards the end of this long passage in the judgment the judge continued:

"In the light of all those inconsistences and illogicalities I would be quite unable to accept as truthful Mr Syed Uddin's account of obtaining alternative accommodation at the Zaidi House or of the arrangements made in connection with the obtaining of such accommodation, even if Mr Syed Uddin had impressed as to the manner in which he gave his evidence. In fact, however, the concerns which I had in considering simply the inconsistences and illogicalities to which I have referred were simply exacerbated by the manner in which Mr Uddin gave his evidence. He seemed to me deliberately to misunderstand questions and to embark on long and involved answers to matters which in my judgment he understood perfectly well he was not being asked about. He also had difficulty which no other witness in the trial seem to have to the same extent in finding his place in the trial bundles. He did not always find it easy to read or to understand documents of which he was himself the author. He professed to have no, or a very limited, recollection of a number of important matters, such as when exactly he had repaid the loans which he contended had been made to him or out of what funds. All of these apparent problems, it seemed to me, were devices either to give him more time to concoct an answer or to seek to divert attention away from some matter which he found difficult to deal with. I am satisfied that Mr Syed Uddin deliberately lied in the witness box. The telling of untruths can only have been in support of a dishonest case that he had incurred expense in obtaining alternative accommodation for members of his family after the fire at the Property on 30 November 1999. There would be no other reason to do it."

7. The judge then continued in a passage which is the subject of considerable criticism by Mr Basu on behalf of the applicants. The judge said:

"If, as I find, the case that Mr Syed Uddin had incurred expense in obtaining alternative accommodation for members of his family was dishonest, it must follow that all of the evidence led in support of that case was untrue and that those giving it had conspired together to defraud Norwich Union. It may not strictly be necessary in those circumstances for me to consider the other evidence given on behalf of the Claimants in support of the case as to alternative accommodation. However, some of that evidence was itself, in my judgment unsatisfactory in ways which support my conclusion, and to that evidence I shall refer. Mr Uddin himself did not really deal with the issue of the loss of the Set, beyond saying in general terms that gold jewellery which had been in the Property before the fire had gone missing. Consequently, I should consider the evidence as to the missing jewellery."

8. In his grounds of appeal in his skeleton argument and in his oral submissions to us, briefly and succinctly and well made, Mr Basu makes substantial criticisms of the judge's findings of fact, and in particular, as I have said, he criticises the comment made by the judge (which I have just read) that, following his finding that Mr Uddin's evidence was untrue it must follow that all the evidence led in support of the case was untrue and those giving it had conspired together to defraud the Norwich Union. Accordingly, as I have said, the judge went on to say it was not strictly necessary in those circumstances to consider the remainder of the evidence. But he did in fact go on to do so.
9. I do not for my part accept the generality of the criticism of the judge's judgment in that respect. It might possibly have been phrased differently and perhaps more happily. But the plain fact is that the judge gave his judgment after hearing the totality of the evidence in the case. He had clearly formed a very adverse view of Mr Syed Uddin's evidence. However, although it was perhaps very unlikely in the circumstances of this case, if the evidence that subsequently emerged had convinced the judge that he was wrong in the view that he had formed about Mr Syed Uddin's evidence, then no doubt he would have said so. Moreover, the judge did go on to consider in some detail most of the important evidence that he had heard, both from the claimants and from the defendant, and gave his reasons for accepting some of that evidence and rejecting other parts of the evidence. In my judgment, there is no substantial criticism that can be made of the judge's finding in that regard.
10. In paragraph 25 of his judgment the judge summarised the evidence that he had heard from Mr Zaidi Uddin. He said:

"Mr Syed Zaidi gave evidence which was broadly to the same effect as the account which Mr Syed Uddin gave at trial. However, Mr Zaidi suffered from the considerable disadvantage, for someone putting himself forward as a witness as honesty and truth, that he is a self-confessed liar."

11. The judge then considered the evidence given by a Mr Bailey. Mr Bailey had made a written statement of evidence on behalf of both the claimants and the defendants. He was called to give evidence by the defendants. The judge said at paragraph 31 of his judgment:

"It is immediately apparent, and was recognised by Mr Bailey in his statement dated 7 August 2001, that the account given in that statement was completely different from the account given in the statement which he gave to Mr Russel-Price."

12. The judge then went on to consider the contents of the statements. In paragraph 33 the judge said in relation to Mr Bailey's evidence overall:

"These are highly damaging admissions, if true. If, as I find, they are not true, the irresistible conclusion is that Mr Bailey perjured himself in the witness box."

13. Then so far as Mr Bailey is concerned finally in a passage at paragraph 37 which is relied upon by Mr Basu, the judge said:

"In all the circumstances I should be disinclined to place any reliance whatever upon the evidence of Mr Bailey were it not for the fact that his original account given to Mr Russell-Price was supported by documentary material and, to a degree, by the evidence given on behalf [of other witnesses]."

14. Mr Basu submits that the witness having been treated as a hostile witness the judge should have disregarded his evidence altogether and should not have placed any reliance on it at all even where it was supported by other witnesses.
15. The judge gave permission to counsel for the defendants to treat Mr Bailey as a hostile witness. He did so without first permitting Mr Basu to make submissions as to whether the witness should be treated as hostile or not. Quite clearly the judge was wrong to take that course. He should have allowed Mr Basu to make submissions to him. However, very properly, Mr Basu interrupted the proceedings and invited the judge to hear submissions which the judge then allowed him to make. Having heard Mr Basu's submissions he adhered to his previous view. That was indeed an unfortunate situation which ought not to have arisen.
16. In giving his ruling in relation to whether Mr Bailey was to be treated as hostile, the judge said:

"Mr Bailey has told me that the facts stated in both the manuscript version and in the typed version are not true. In those circumstances it is plain so far as your clients are concerned [that is the respondents] he is an adverse witness. The test is not whether the evidence that Mr Bailey has given this morning was a surprise to anyone but whether the evidence is contrary to the interest of the party calling him and contrary to a statement which he had previously made which appeared to support that party. In those circumstances I am entirely satisfied that it is appropriate for you to have the permission which I have granted you to treat Mr Bailey as a hostile witness."

17. Mr Basu submits that the judge applied the wrong test. The test is not simply whether the witness had given contradictory statements, but whether he has been proved to be adverse and can properly be described as a hostile witness.
18. I have read the evidence that was given by Mr Bailey up to the point where the application was made to treat him as hostile and have also seen the contents of the three statements, and although Mr Basu is, in my judgment entitled to make the criticism that he does of the way in which the judge expressed his finding, it is my view that the judge was in fact right to allow counsel for the defendants to treat Mr Bailey as a hostile witness. However, even if I was wrong in coming to that conclusion it would not cause me to take the view that there was a reasonable prospect of an appeal by the claimants being successful. Once the judge had wholly rejected the evidence given by Mr Syed Uddin and indeed Mr Zaidi, there was, in reality, no realistic prospect that his claim would succeed. One envisages the circumstances where Mr Bailey gave no evidence at all that would not have affected the judgement overall. Furthermore, where the evidence of a hostile witness is corroborated to the hilt by other witnesses then a judge is entitled to place some reliance upon it.
19. I have, as I have indicated, read substantial passages in the transcript of the evidence, although not by any means all of it. I am left in absolutely no doubt whatever that the judge was not only entitled to, but was correct to, reject the evidence given by Mr Syed Uddin and Mr Zaidi and the other witnesses called on behalf of the claimants and conclude the case as he did. The judge did finish the judgment by referring to the evidence he had heard from the other witnesses in the case, including the evidence given by the defendants, a Mr Russell-Price, whose evidence the judge accepted.
20. Accordingly, the judge was entitled to reach the conclusion that he did, namely, that this was a dishonest claim and to dismiss it. There is in my view no reasonable prospect that an appeal against the judgment would succeed and I would refuse to grant permission.
21. LORD JUSTICE SCHIEMANN: I agree.
(Application refused; no order for costs).