England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HHJ Gore QC
7LV18468 / 8LV12546

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/01/2012

Sir Stephen Sedley:

1. On 30 June 2007 in Ullet Road, Liverpool, a saloon car which was being driven by the first defendant truck a stationary bus. The damage to the vehicles was slight: it cost £427.50 to repair the bus. But 14 passengers on the bus claimed to have suffered whiplash injuries, and in the proceedings with which we are concerned 10 of them succeeded in establishing liability for modest agreed damages.
2. The agreement was, however, subject to a contest on liability. The second defendants, who were the first defendant's insurers, were understandably highly suspicious of these claims. Their suspicion was initially founded on the sheer unlikelihood of so  many passengers having suffered remarkably similar trauma from a very minor jolt. By the date of trial, before Judge Gore QC in the Liverpool County Court from 28 June to 1 July 2010, this suspicion had the backing of an engineering expert, Mr Parkin, whose report concluded that to reach the conventionally accepted threshold for collision trauma known as Delta V, representing here an enforced movement of 3 m.p.h., the car would have had to be travelling at 30 m.p.h. or more. Since the damage to the vehicles was inconsistent with a collision speed of more than 15 m.p.h., Mr Parkin's expert opinion was that there could not have been enough force in the collision to cause any injury, let alone to injure 14 passengers.
3. If this evidence had been accepted, it would have been an end of the case. The injuries would necessarily have been fabricated. But, for reasons which are not challenged in this court, the judge found that the totality of expert opinion allowed the possibility of injury at lower speeds, and that there was in reality no scientific threshold below which injury could not occur. This was in part because the physiological mechanism of injuries such as those the court was concerned with was itself not scientifically known. In short, the judge found it not impossible that this minor collision could have caused whiplash injuries to passengers on the bus.
4. The challenge did not end here, however. The second string to the defendants' bow was that the accounts given by the respective claimants were themselves pockmarked with inconsistencies, making them one and all unworthy of belief. It is on this aspect of the case that this appeal turns.
5. Before I deal with it, it is relevant to observe that the two limbs of the defence interlocked. If a low-speed collision like this one could not cause injury, the claimants must be lying when they claimed to have been injured by it. Equally, if none of the claimants had in truth been hurt by the collision, the collision, irrespective of Mr Parkin's opinion, had caused no injury. But the second limb, as Mark Turner QC for the insurers has readily accepted today, required the disbelief of the claimants en bloc. The endeavour was therefore to demonstrate collusion, not merely single instances of exaggeration or malingering (of which the defendants' examining doctor made no suggestion in relation to any claimant). As the judge said to the second defendants' trial counsel, Paul Higgins: "Either I have got ten liars or, frankly, I have got none." "That," replied Mr Higgins, "is our position."
6. A major part of the trial was accordingly devoted to the cross-examination of the claimants (with the exception of the 8th claimant, Terence McLean, who did not give evidence as his statement was admitted under the Civil Evidence Act 2005, and the 10th claimant, a young child, whose mother, the 9^th claimant, gave evidence for him). A substantial part of this took the form of putting to each of them the content of the medical reports on them in order to highlight discrepancies between what they were now saying and what they had said, or allegedly said, to the doctors who had treated them or examined them for forensic purposes. To this end use was repeatedly made, without objection on the claimants' behalf, of the reports which had been routinely exchanged and now formed part of the agreed court bundle.
7. Notwithstanding the absence of objection, Judge Gore QC was not happy with the deployment of this material without explicit notice to the claimants. He pointed out that, precisely because insurance fraud was such a serious matter, it should not be alleged on the basis of mere suspicion: it must be based on "proper and admissible evidence … managed and presented in accordance with the substantive and procedural laws and rules of this jurisdiction". No issue has been taken with this comment. What has brought the case to this court is what followed in the judgment.
8. The judge, taking his own course rather than one charted by counsel, reminded himself of what Brooke LJ had said in Kearsley v Klarfield [2005] EWCA Civ 1510 about the relationship of pleading to evidence, and then said this:

"7. It is at this point material for me to note and observe that Mr Shah was instructed on behalf of the Second Defendants to examine and provide a report on all 10 Claimants. He advances no substantive reasons for disbelieving the account of any individual claimant and he make no assertion that any of them are to be disbelieved, confining himself instead in some but not all cases neutrally to draw attention to 'a slight discrepancy' here (page F14 paragraph 61 re the First Claimant) or 'another discrepancy' there (page F37 regarding the Second Claimant) and sometimes he drew no attention to discrepancies that did exist in materials available to him, from which one infers that he thought them to be trivial"

9. Although it does not overtly criticise Mr Shah, implicit in this passage is a suggestion that it is an examining doctor's job to make out the case, if there is a case, for disbelieving a claimant's account of how he or she came to suffer injury, or of the injury he or she has suffered. There are of course cases in which, for clinical or related reasons, the doctor is driven to advance such an opinion; but if it was intended here to suggest that the doctor's role is routinely that of a sleuth, I must record my respectful disagreement. Forensic medical practice has been disfigured in the past by practitioners who took on such a role; but it was to Mr Shah's credit that he confined his report to those divergences which emerged from his own interviews and from the records supplied to him and did not take on himself the task of deciding who was to be believed.
10. Similarly Mr Nee, to whose reports on behalf of the claimants the judge then turned, had correctly left it to the court to determine whether the claimants were telling the truth. Like Mr Shah, he confined himself to the medical coherence of the accounts given to him. And both specialists found that, subject to the discrepancies to which I shall be coming, the accounts given to them were medically credible. It followed that the defendants had either to succeed on the basis of Mr Parkin's evidence that collision dynamics excluded the possibility of injury or to show the claimed injuries to be uniformly bogus; or, ideally, both.
11. There followed in the judgment seven very substantial paragraphs setting out decisions on the admissibility of documents to prove the factuality of assertions recorded in them. These included a long passage from the judgment of Buxton LJ in Denton Hall Legal Services v Fifield [2006] EWCA Civ 169, as well as a judgment to similar effect of Judge Stewart QC in Lawrenson v Lawrenson and Equity Red Star (unreported, 12 July 2005). This was Buxton LJ's conclusion:

"To obviate such difficulties in future, and to ensure that factual issues in medical cases are economically and efficiently tried, the following procedure should be adopted. First, a party who seeks to contradict a factually pleaded case on the basis of medical records or reports should indicate that intention in advance, either by amendment of his pleadings or by informal notice. Then, the opposite party must indicate the extent to which they take objection to the accuracy of the records. When the area of dispute is identified, a decision will have to be taken as to whether the records need to be formally proved …."

12. In this light Judge Gore QC concluded that, had the defence been properly conducted, formal notice would have been given of the insurers' intention to rely on hearsay contained in Mr Shah's reports, with the result that the claimants might have required Mr Shah to attend for cross-examination as to why he had not put to each claimant the discrepancies between what they were telling him and what they had previously told other doctors. "The claimants," he concluded, "were denied that opportunity by these issues only being raised in cross-examination at trial". He went on:

"13. In my judgment that is an unsatisfactory state of affairs and approach. The consistent thread of authority is to the effect that claimants whose honesty and integrity are being challenged in this way are entitled to be put on notice of both that fact, and the basis for it. It is now pure speculation whether Dr. Shiffman or Mr Nee would have said that what they record is their own summary of understanding of what the claimants told them rather than a verbatim account, or whether Mr. Shah would have accepted that all he dictated to each claimant in their presence was his findings on clinical examination (in which section that observation is always recorded) as opposed to the many paragraphs (often approaching 35 or so) extending to several pages (4 or 5) that Mr Higgins suggests were dictated in their presence. No-one has explored with any of the Claimants or witnesses how long it took Mr Shah to dictate to them 35 or so paragraphs in their presence as well as elicit a history and conduct a clinical examination, if indeed it was the case that that is what occurred.

14. Mr Higgins seeks to avoid the strictures of Denton Hall by distinguishing between cases where a party seeks to advance a record as evidence of the truth of its contents and cases such as these where a party 'merely' (his word) relies on the inconsistencies as undermining the credibility or veracity of the witness. I do not agree for several reasons. First, that ignores that what is here alleged is deliberate dishonestly of account and that is a very serious allegation of which witnesses are entitled to notice and particulars. Secondly, the relevant legislation, while acknowledging the different purposes for which previous inconsistent statements can be used, does not in fact lay down a different approach to the handling of such evidence dependant upon the purpose for which it is to be used (compare the generality of the provisions in section 2 and 3 dealing with admission, with the recognition of different purposes in section 6 (3) and (5) in each case of the Civil Evidence Act 1995). It is therefore a distinction of no value or utility. Thirdly, the inconsistent statements relied upon in Denton Hall were being used for both purposes and therefore the remarks about how that was to be done are as apposite for each of the purposes and not simply for one of them.

15. Accordingly when I come to weigh weight and veracity I will take into account that the matters relied upon by the Second Defendants have really only been put in cross-examination, not heralded in advance, and are based upon hearsay evidence that though admissible and admitted, has not been put in place with the proper formality demanded by the interests of justice as I have found them to be, which in my judgment significantly undermines the weight to be attached to these points."

13. It is the consequence spelt out by the judge at paragraph 15 which is the linchpin of Mr Turner's case in this court. The paragraph is not only wrong, he submits; it has ineluctably contaminated the fact findings which follow.
14. These findings are spelt out in full and careful detail, claimant by claimant, in the body of the judgment. In no case did the judge find that any discrepancy put to a claimant was sufficient to call his or her evidence in doubt. In conclusion he said this:

"34. At the end of the day, I find for all of the Claimants for reasons that can be summarised as follows. Firstly, none of them struck me as essentially dishonest witnesses deliberately fabricating or exaggerating their accounts either of the accident or of its effects upon them. Secondly, while there were inconsistencies internally in different accounts they had given and between them also, none were so great as to cause me to regard their evidence with distrust or suspicion and indeed it would have been suspicious if there were no such inconsistencies. Thirdly, I accept that it is implausible that so many people went to the trouble and inconvenience of going to hospitals or doctors or clinics, sometimes more than once, if, as the Second Defendants suggest, there was nothing wrong with them. Fourthly, that is particularly true as regards the Ninth Claimant – it is implausible that she would dishonestly fabricate complaints voiced by her son and take him to hospital, thereby running the risk that he would say and be recorded to say something to the effect that no such accident had happened. Fifthly, for the reasons I have given, I am not satisfied that the Delta V issue is anything like as determinative as the Second Defendants wish it to be and I am fortified in that view by the agreed evidence of Mr Nee and Mr Shah. Sixthly, by accepting as I do, the essentially honesty of the claimants and their witnesses, I am satisfied that there was a sufficient jolt or shudder or shunt or jar, however it has variously been described, to have caused the symptoms of which complaint is made. Seventhly, I am fortified in that general view by the fact that Dr Shiffman on examination actually found signs as opposed to merely reporting symptoms of injury. Eighthly those conclusions seem to me to fit well with the acceptance by Mr Parkin that the impact was sufficient in his view to give rise to risk of contact injury, which was in fact suffered by the Tenth claimant."

15. It is the insurers' case that there was no procedural defect in the preparation or presentation of their case, and therefore no power in the judge to attenuate the value of the evidence they adduced of previous inconsistent statements made by a number of the claimants. As the acquiescence of the claimants' own counsel at trial confirmed, they were fairly cross-examined on the basis of properly adduced material. It was properly adduced because it formed part of an agreed bundle which, by virtue of CPR 32 PD 27.2, not only operates – subject to notice of objection or to a contrary order of the court – as an admission of the authenticity of the documents in the bundle but makes them admissible as evidence of the truth of their contents. From that point, subject to any want of proper pleadings, it is for the claimants' lawyers to take instructions on any apparent discrepancy revealed by the documents and thus capable of being a topic of cross-examination. This being so, Mr Turner submits, no question of ambush or want of notice arises.
16. In my judgment the short answer to this appeal is that, accepting for the time being all of Mr Turner's strictures on the judge's approach and the correctness of his own, there is nothing whatever in Judge Gore's fact-finding which suggests that he has gone any distance towards applying his view of the law in practice. Not only does he make explicit reference, under his second head in paragraph 34, to "inconsistencies internally in different accounts [the claimants] had given and between them also"; when you refer back to the detailed findings he has made about each claimant, you find no sign of any devaluation of the discrepant evidence relied on by the insurers to discredit them. The material contained in the defendants' medical reports is treated by the judge in every instance as reliable evidence of what Mr Shah said to each of them about their previous accounts. (The defendants, of course, had no desire to adduce those accounts as themselves truthful.) The question the judge then addresses is whether it causes him to disbelieve them now. Thus he has done all that the appellants require of him.
17. By way of illustration of the insurers' case, Mr Higgins took us through some of the evidence behind the judge's findings about the first claimant, Paul Rowan. It is sufficient to record that, as Mr Higgins candidly accepted, it afforded no material elements other than those which the judge included in his findings. These are illustrated in the following passage:

"Mr Higgins submits in writing that his evidence should not be accepted because reference to dropping his paper was a late addition, his description of using his hands to steady himself was not consistent with his vigorous movement which itself was not consistent with 'resting' his hands on the bar in front, the discrepancy as to time to recovery was serious, the reference to pins and needles was a witness box attempt to finesse his difficulties, he did not mention back pain to Mr Nee, and he did not mention taking pain killers on the night to Mr Shah. However a close exanimation of exactly what he has said seems to me to demonstrate a consistent account save that back is not mentioned until he sees Dr Shiffman and the discrepancy as to time to recovery is described by Mr shah and Mr Nee as 'slight'. He mentioned pins and needles the next day at the hospital. He only mentioned the paper falling when asked by Mr Higgins what happened to it, as question I would not have expected to be regarded as material either by a solicitor taking a statement or a doctor eliciting a history, which is why that detail had not emerged before. He and all the Claimants protested at the difficult of trying to be exact about all of these detail now 3 years after the events. The contemporaneous or near contemporaneous accounts to the clinic and to Dr Shiffman impress me. There is in my judgment therefore nothing within the accounts given by the First Claimant to suggest that he is dishonestly exaggerating either his description of the accident or its effects upon him and no doctors have suggested otherwise. "

18. Mr Higgins candidly accepted, first, that there was nothing intrinsically objectionable in the findings about Mr Rowan and, secondly, that there was no solid evidence anywhere in the judgment that the findings had been affected by the approach described by the judge in paragraph 15 of his judgment.
19. In this situation it seems to me that this appeal cannot succeed even if the appellants are right in their legal submissions. It follows that it is not necessary to adjudicate on the arguments advanced by the parties on the procedural requirements for the admissibility and admission of hearsay evidence contained in documents. What follows should be read in that light.
20. Mr Turner submits that the passage of Buxton LJ's judgment in the Denton Hall case referred to above, albeit obiter, contains an error of law.  At paragraph 77 Buxton LJ said:

"What the doctor writes down as having been told him by the patient, as opposed to the opinion that he expresses on the basis of those statements, is not at that stage evidence of the making of the statement that he records."

21. Both Mr Turner and Frank Burton QC, for the first 8 respondent claimants, take the view that s.1 of the Civil Evidence Act 1995 makes such a statement admissible. They agree, too, that Buxton LJ, when he went on to describe the effect of such a statement as going to credibility alone, citing North Australian v Goldsborough [1893] 2 Ch 381 at 386, appears to have overlooked the reversal of this doctrine by the Civil Evidence Act 1968 and again by s.6(5) of the 1995 Act.
22. Section 2(1) of the 1995 Act goes on to require such prior notice of intention to adduce hearsay evidence "as is reasonable and practicable in the circumstances for the purpose of enabling [the other party or parties] to deal with any matters arising from its being hearsay". Section 2(3) makes provision for the notice requirement to be waived. It is, however, unnecessary to explore the wording of the section further because s.2(2) authorises the making of provision by rules of court either to disapply this requirement or to regulate its implemention. This is now done by CPR 33.3, which inter alia waives the need for notice where a practice direction so provides. This, it would seem, gives 32 PD 27 the force, or at least the support, of law when it provides:

All documents contained in bundles which have been agreed for use at a hearing shall be admissible at that hearing as evidence of their contents, unless –

(a) the court orders otherwise; or

(b) a party gives written notice of objection to the admissibility of particular documents.

23. It may be said that this reverses the notice requirement set out in s.2(1). It can equally be said that the effect is to treat the agreement of a bundle as the requisite notice, leaving it to the objecting party to serve what is in substance a document-specific counter-notice. But Mr Burton contends that more is needed for the admission of such hearsay than simply agreement of a court bundle. It requires, he submits, at least express notice of the fact that reliance is to be placed on the hearsay contained in the bundle, leaving it to the party served to require specificity. Mr Turner, by contrast, takes the stance described above in paragraph 15.
24. It has to be said that Mr Burton's position, in addition to sitting ill with the practice direction, is an invitation to almost limitless and costly wrangling both before and at trial. It may be that, at least in essentially straightforward litigation like the present, the answer to his problem lies in ensuring that the opposing case is properly pleaded, if need be by amendment following disclosure. (I record here my own respectful view that the passage of the amended defence recited in paragraph 46 of the judgment in Kearsley v Klarfield, pace what is said in paragraph 48, included an unequivocal pleading of fraud. I wonder, too, whether it was not demurrable for inconsistency.) From that point the obligation will lie on each party's lawyers to go through the agreed documents with the client or witness and take instructions on any discrepant evidence, albeit hearsay, relevant to the pleaded issues. But a party which has failed to plead its case with sufficient clarity may well find itself barred from adducing any evidence, hearsay or not, in support of an unpleaded contention.
25. The generic defence in the present cases was somewhat thin in this respect. It may therefore have been to this that Judge Gore QC should have looked in seeking – as he was justifiably doing  - to forestall trial by ambush. But the question is not one on which it is necesssary to rule here.
26. For the reasons I have given I would dismiss this appeal.

Mr Justice Mann:

27. I agree.

Lord Justice Gross:

28. I also agree.