COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER COUNTY COURT
DISTRICT JUDGE JONES
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SMITH
LORD JUSTICE HUGHES
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Mr B Coulter (instructed by Messrs Clear Law) for the Respondent
Hearing date: Thursday 19 April 2007
Crown Copyright ©
Lord Justice Sedley :
This is the judgment of the court.
(1) Having heard the claimants give evidence, he believed them.
(2) He had considered the manner in which they gave their evidence and in particular the quickness with which they responded to questions.
(3) He had warned each one of them of the consequences of his deciding that they were pursuing a fraudulent claim and had seen their reply. He did not consider the men to be dishonest.
(4) He accepted that he had not yet heard the defendant give evidence, but in view of his decision that the claimants were honest he could not see how the defendant could win.
(5) He wanted to give both counsel an indication of his thoughts.
(6) It was 'flavour of the month' for insurers to prosecute claimants with 'Asian sounding names'.
(7) He would, if necessary, say something about that in his judgment..
(8) Insurance companies are trying to send out a message about fraudulent claims to the Asian community, if there was such a thing.
(9) There were some discrepancies in the evidence given by the claimants but not such as to make him think that this was a fraudulent claim.
(10) He noted that the defendant worked for the police.
(11) Someone with a police background 'always thinks that they are right' [or 'never thinks that they are wrong'] 'and find it difficult to accept that they might be mistaken'.
(12) The defendant may or may not be mistaken, but he believes that he saw two people in the car and may have concluded that the claimants are 'at it'.
(13) He would continue to hear the case, but the defendants' counsel may wish to take instructions over the lunch break.
The only difference of recollection is that the defendant's counsel does not recall (5) featuring in the dialogue. We will return to its significance in a short while.
"My perceived "sin" is set out in paragraph 4 of the Notice of Appeal. I do not have the court bundle in front of me as this was returned to the Claimant's representative, but from memory I believe that the evidence of each Claimant was completed at about 12.50p.m. on the 13 July 2006. I invited Counsel for the parties into my chambers and told them that I considered in the light of the evidence and the substantial cross-examination that the Claimants were telling the truth.
The trial recommenced at about 2.15p.m. No mention was made in Open Court of the discussion I had had with Counsel for the parties. Again from memory, the Defendant's evidence was completed at about 4.00 p.m. I adjourned to prepare a judgment which I gave the next day.
It is my belief that I have given judgment in accordance with the evidence heard. The Defendant's evidence given on the afternoon of the 13th July 2006 did not persuade me that my initial reaction that these Claimants were telling the truth was wrong. This Defendant gave his evidence with such precision in relation to an incident that happened 17 months before the trial that I found myself disbelieving it. It never occurred to this Defendant that he could be wrong as to the presence of the third Claimant within the car. He thoroughly resented the fact that his Counsel on the morning of the trial had advised him that he had no defence to the claim for negligence because, as he stated in his evidence, he was of the view that he was not to blame for the accident."
The judge goes on to explain an aspect of his judgment which is not now in issue, and ends:
"In conclusion, my decision is based upon evidence that I heard and my remarks to counsel during the lunchtime adjournment were made on the basis that during the course of cross-examination of each Claimant the Defendant's case had not been made out. The weight of evidence favoured the Claimant."
"There are, of course, occasions when a judge or tribunal can quite properly explore difficulties that have become apparent from the evidence in a case, prior to the point at which all evidence has been led and submissions made, whether with a view to encouraging parties to consider settlement or narrowing the issues between them, or otherwise. There must, though, be few occasions when that can properly be done at a point prior to the leading of any evidence in the case since, at that stage, there is, by definition, no evidence before the court or tribunal on which it can comment. Moreover, if minded to make such a comment, it is plain that the risk of giving an impression of prejudgment will arise if it is not made clear to the parties that any views expressed are but provisional, that the tribunal's mind is not yet made up and that it remains open to persuasion."