IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TELFORD COUNTY COURT
(HIS HONOUR JUDGE MITCHELL)
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE WILSON
|1) MOHAMMED YAQOOB|
|2) SHAZAD YAQOOB||CLAIMANTS/RESPONDENTS|
|- v -|
|ROYAL INSURANCE (UK) LIMITED||DEFENDANT/APPELLANT|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR D TAYLOR (instructed by Messrs Lichfield Reynolds, 81 Weston Road, Meir Stoke-on-Trent, ST3 6AJ) appeared on behalf of the Respondents.
Crown Copyright ©
"1. The fire which occurred at Kashmir Balti Restaurant during the early hours of 25 September 1996 was started deliberately in at least two separate locations using a flammable liquid as a fire accelerant.
2. The perpetrator(s) of the fire had access to keys for the loss premises.
3. The perpetrator(s) had contrived a break-in through a ground floor fire exit door at the loss premises in order to make it appear as if a person or persons without any access to keys for the loss premises had been responsible for starting the fire."
Those conclusions were not challenged.
"The standard of proof which the claimants must discharge is of course to show that it is more likely than not that Mr Yaqoob did not so cause the fire. This inevitably involves their having to prove a negative. However, it must be borne in mind that if Mr Yaqoob did indeed set fire to his property in the circumstances alleged, he would have been guilty of serious criminal offences. That has to be taken into account when weighing the balance of probabilities."
There is no challenge to that direction. But it is important to have in mind that the judge approached the matter thereafter on the basis that it was not for the insurers to prove that the fire was caused by Mr Yaqoob or at his direction; although if they were to prove that they would be entitled to void the policy under condition 5, a condition enabling the insurers to avoid liability on the grounds of fraud. If after hearing the evidence the judge had been left in the position that he could not be satisfied, on the balance of probabilities, that the fire was not started by Mr Yaqoob or with his connivance, then the claim would fail. It was not necessary that he should be satisfied that the insurers had made out their pleaded and positive case that Mr Yaqoob had started the fire.
(1) That the fire was started deliberately in at least two locations using a flammable liquid as a fire accelerant;
(2) That the perpetrator of the fire had access to keys for the property;
(3) That the perpetrator had gained access to a key for the intruder alarm;
(4) That the perpetrator had sought to make it appear that access had been gained by a break-in by someone who did not have a key for the property.
Those points are taken from Mr Bailey's report but they are summarised in the respondent's skeleton argument at paragraph 11.
"6. In the last eight to nine years, I have probably attended 25 fires each year in which the fire has been deemed to have been caused by arsonists. …
7. In those other incidents, I can say that the efforts made to ensure the spread of the fire did not extend to the lengths which were evident in this case. Whoever caused this fire seems to have been in the premises for quite a while and to have known the premises well."
As I say, that evidence was not challenged.
(5) That the perpetrator was a person who would be identifiable as someone who had access to the keys. Why else should he go to the trouble of contriving a break-in?
(6) That the perpetrator was a person who knew that there was an intruder alarm, who knew where the intruder alarm was to be found, and who knew that keys to the cupboard and alarm were on a hook underneath the take-away counter.
I find the latter inference inescapable in circumstances that Mr Hoye had heard the intruder alarm sound for about 30 seconds and then stop. I find it impossible to accept that an intruder who did not know where to find and how to switch off the intruder alarm would have managed to do that within a period as short as 30 seconds, or within whatever time from entry was available between the activation of the alarm and its being switched off.
"I can still remember the restaurant premises very well. I remember walking through the premises. … I saw very little food evident on the premises. I would have expected to see far more stock in a working restaurant/take-away."
He was asked about that in the course of giving evidence in chief:
"Question: Do you have any recollection of any stock that you found on the premises?
"Answer: Not at that time when I first arrived, but as I was going round the property having a look during the investigation, I was quite surprised of the cleanliness of the property, considering it had been open until the early hours of the morning.
"Question: What about the amount of the stock there?
"Answer: Well, again that was brought to my attention by a fireman stating he was surprised that there were no remnants of food lying about, at which time one of the crews was having a look through the freezers to make sure we hadn't - if we could, we would put the electrics back on to salvage some of the freezers to keep them working if there was stock, and it became apparent that there was no stock in the fridges."
And he went on:
"… part of the fire service's job is to mitigate damage and, if possible, when we've knocked electricity off or it has been tripped, if we can isolate certain circuits that have been affected by fire and keep circuits on such as freezers, that sort of thing, we will do that at the time."
"During the investigation it was apparent there were very little contents in the storage areas and fridge/freezers which would normally be expected in a restaurant/take-away, i.e. food and drink."
And he confirmed in answer to a question in cross-examination that he had looked for food and drink with the scenes of crime officer who was with him at the time, PC Rollison, and that the only thing he could add to Mr Rollison's evidence was that within the take-away area on the ground floor there was a glass-fronted cooler which was typical of that sort of establishment, but there was nothing in the cooler and no remnants on the counter either.
"At some point in my examination, I think it came to my notice via a fire fighter coming to me and saying, 'There isn't much food here,' and I thought, 'Well, that's odd'. So I think myself and another officer searched the premises for food. We found that there were two or three chest freezers, which I think were near the back door and, in those, there were possibly half a dozen bags of frozen chips, just enough to cover the bottom of the chest freezer, and there was a doorway between the kitchen and the take-away area and by that doorway - I think that's where it was - there was a tall fridge/freezer or a tall freezer, and in that all the shelves were empty except the top one, which had a cardboard box with some hamburgers in. I think other than that we found a tray of onions and a few bits and bobs, but nothing substantive. We didn't find a supply of drinks. We didn't find any meat, which surprised me."
"Question: When the fireman and police went to the fire, they found, I think, about six bags of frozen chips and one cardboard box of burgers.
"Answer: I don't think so, no. No, that is total lie. I don't think so.
"Question: What else was there then?
"Answer: There was a lot of food there. There was a lot of frozen food. Six boxes is a joke.
"Question: What else was there then, Mr Yaqoob?
"Answer: Well, I cannot remember every item that was there, but there was – everything was everywhere. So it's hard for me to say what was there. I was never told there was going to be fire, so I make a list of it, but it was a fair bit. It was a week supply."
And he confirmed that there were lots of cans of soft drink; 4 boxes, containing at least 100 cans.
"I would have thought – I don't think there was a lot of alcohol, was there, on the premises, by the look of it? You would have thought probably Ł2,000, Ł3,000, and I just wonder, as I say, whether the figure in the accounts is more an estimate that the accountants have put in the accounts rather than a true stock-take, which is not unusual in all the circumstances.
"The defendants submit that after the fire there was little food to be found on the premises and no bottles of alcoholic drink. The inference is that Mr Yaqoob had removed the stock or run it down prior to the fire. The evidence in this connection comes from fire officers and a police officer, principally Divisional Fire Officer David Bott and the police Scenes of Crime Officer, Peter Rollison, both of whom have given oral evidence. Mr Bott's contemporary note simply records very little food or drink. Mr Rollison's original manuscript record makes no reference to the matter at all. When following the fire Mr Yaqoob was interviewed under caution by Detective Sergeant Goodwin, he was asked nothing about this. In evidence to me, he explained that the base for his dishes was principally either chicken or lamb. Fresh meat was brought in and cooked daily. The contents of the freezers would principally comprise frozen chips, burgers and baps, together with a few other things such as prawns and scampi. The frozen supplies were delivered on Monday and Thursday of each week. Accordingly, he never carried a great deal of food stock, but would have had a week's supply in hand at the time of the fire. So far as drinks were concerned, he carried little stock. He preferred customers to bring their own alcoholic beverages. He would bring in some cans of lager and also stocked Cokes and soft drinks."
"At the end of the day, I must assess the totality of the evidence, including the oral evidence of Mr Yaqoob. There is no doubt that he would have had the opportunity of lighting this fire, or of causing it to be lit by others. There are, however, others who could have committed the offence with intent to injure him and who might also have wished to cover their tracks, for example disaffected past members of his staff or contractors with whom he had been in dispute and would either have had access to keys or might have secured duplicates. Mr Yaqoob, without wishing to point the finger at anyone in particular, gave the police details of a number of persons who might have held a grudge against him. There is the evidence of the two white boys having been seen running away. Significantly, no rational motive is apparent for Mr Yaqoob having done it. So far as the various aspects of his conduct to which I have referred, when they are examined. None of these appears to take the matter any further."
"I have observed the demeanour of Mr Yaqoob closely over part of two days whilst he was rightly subjected to a searching cross-examination by Mr Lord [counsel for the insurers]. I detected no indication that he was being mendacious, nor was his evidence materially undermined. Placing that in the scales together with all the other evidence is sufficient to tip the balance in his favour. I find on the balance of probabilities that this fire was not occasioned by him or with his connivance."
"Their Lordships can hardly imagine a case in which the credibility of a witness could be more vital than a case like the present where the claim is based on deceit, and the witness in question is one of the defendants charged with deceit. Their Lordships would add that they accept, and would apply in the present case, the principle that where a defendant has been acquitted of fraud in a court of first instance the decision in his favour should not be displaced on appeal except on the clearest grounds."
Order: Appeal allowed. Claim dismissed.