England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2014] EWCA Civ 1043

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		Neutral Citation Number: [2014] EWCA Civ 1043
		Case No: B2/2013/1051

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
(RECORDER BUTLER)

Royal Courts of Justice
Strand, London, WC2A 2LL

1 July 2014

B e f o r e :

LORD JUSTICE KITCHIN
____________________

	ASLAM	Applicant
	-v-
	AVIVA INSURANCE GROUP	Respondent

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____________________

The Applicant appeared in person
The Respondent did not appear and was not represented
____________________

HTML VERSION OF JUDGMENT
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LORD JUSTICE KITCHIN: This is an application by the appellant, Mr Aslam, for permission to appeal against the judgment of Mr Recorder Butler sitting at Manchester County Court on 8 February 2013 and his consequential order dismissing Mr Aslam's claim against the respondent, Aviva, and ordering that Mr Aslam should pay Aviva's costs to be the subject of a detailed assessment if not agreed. The Recorder refused permission to appeal. This application for permission has not been considered on the papers and so it comes before me today for oral hearing. Mr Aslam has appeared in person. The notice of appeal was filed on 16 April 2013. The very long delay since that date is not attributable in any way to Mr Aslam; he has certainly not been guilty of any default in pursuing this application.

The background to the application may be summarised as follows. The case concerns a claim by Mr Aslam against Aviva in respect of what Mr Aslam contended was its wrongful failure to indemnify Mr Aslam in respect of losses which he claimed to have suffered as a result of the theft of property from premises from which he conducted business.

The claim was advanced in respect of a contract of insurance which Aviva accepted was effective from 4 October 2007 to 3 October 2008. The risk address was originally 5 Nottingham Drive, Ashton-under-Lyne, but from 20 January 2008 that address changed to 85 Ten Acres Lane, Newton Heath, Manchester.

Mr Aslam had contended that on 26 August 2008 armed intruders entered the premises at 85 Ten Acres Lane, held him at gunpoint and stole equipment from the premises, which equipment Mr Aslam had bought and which had a value of around £70,000. Mr Aslam contacted the police and it seems that the alleged burglary was investigated by Detective Sergeant Catney. However, the police eventually concluded that there were concerns about whether the alleged crime had ever taken place and for that reason, perhaps amongst others, no crime reference was ever provided to Mr Aslam.

Mr Aslam was not satisfied and accordingly made a claim under the policy which he held with Aviva. It instructed the loss adjusters Cunningham & Lindsey, to whom I shall refer as C & L, to investigate the claim on its behalf. C & L duly began to carry out investigations and made contact with the police.

Then, on or about 24 February 2009, Mr Cook attended the premises at 85 Ten Acres Lane where he met Mr Aslam and carried out an inspection of the property. Mr Cook gave evidence before the Recorder and explained the nature of that inspection and that he had taken various photographs. The Recorder inspected those photographs during the course of the trial. Mr Aslam contended that Mr Cook's investigation was not properly carried out but this contention was rejected by the Recorder.

On or about 10 March 2009 Mr Dibble of C & L visited the premises where he met Mr Aslam. On this occasion Mr Dibble made a manuscript record of what he was told by Mr Aslam. The Recorder considered that it was evident that Mr Aslam was well aware that he would be required to produce documents establishing that he had in fact bought the equipment which he alleged had been stolen from him.

These visits were followed up by letters from C & L dated 27 May 2009 and 29 July 2009. In the first of these letters Mr Aslam was asked to provide details of the items lost and evidence of their purchase. The second letter stated that the claim had been declined because no crime number had been issued and none of the information regarding Mr Aslam's purchase of the equipment said to have been stolen had been provided. Mr Aslam contended at the trial that he never received these letters because they were sent to the wrong address. Mr Aslam has emphasised before me during the course of his submissions that that was indeed the case and that he never did receive the letters. However, the Recorder found, having heard evidence from Mr Cook, that they were sent to the address which had been given by Mr Aslam to Mr Cook.

Some two years later, on 20 June 2011, these proceedings were issued and shortly thereafter, in July 2011, Mr Aslam provided the various documents which had been requested. At the trial Mr Aslam was questioned as to why the documents had not been provided earlier. It seems that Mr Aslam responded by making a number of allegations and assertions, including an allegation that C & L had colluded with the police; that the police had themselves carried out the burglary and that he had provided the documents to a Mr Fox.

The Recorder rejected all of these allegations, as is apparent from his judgment. He found having heard the evidence that Mr Aslam well knew by March 2009 what he had to supply in order to satisfy C & L that his claim was genuine and he doubted that Mr Fox existed at all. He also rejected in clear and unambiguous terms the allegation that C & L had conspired or colluded with the police.

It is, I think, apparent from the foregoing that the Recorder found Mr Aslam's evidence thoroughly unsatisfactory. He rejected Mr Aslam's evidence that he was provided with a crime reference number. He rejected Mr Aslam's evidence that the letters of 27 May and 29 July 2009 were sent to the wrong address and he rejected Mr Aslam's suggestions that the police and C & L had colluded together. He also found, contrary to Mr Aslam's evidence, that Mr Aslam was aware from the spring of 2009 that he had to provide evidence of the purchase of equipment that he alleged had been stolen.

In all of these circumstances it was, I think, hardly surprising that the Recorder rejected Mr Aslam's claim. He held that Mr Aslam had failed to establish on the balance of probabilities that he had ever sustained the loss; that he had failed to establish that he had ever bought the equipment that he had alleged had been stolen; and that he had failed to establish that there was ever a burglary. His credibility was, the judge found, very poor and his case was not supported in any material respect by the evidence of any other witness.

It is well established and I have sought to emphasise to Mr Aslam this afternoon that this court is very reluctant to interfere with findings of fact by trial judges. Indeed, appellate courts have been repeatedly warned by recent cases at the highest level not to interfere with findings of fact by trial judges unless compelled to do so. This applies not only to findings of primary fact but also to the evaluation of those facts and to inferences to be drawn from them. Despite Mr Aslam's powerful and persuasive submissions to me this afternoon I am satisfied that the Recorder had an ample evidential basis upon which to make the findings that he did and that an appeal against those findings has no real prospect of success.

Mr Aslam has, however, sought to argue before me that the trial was procedurally unfair because he was only provided with the court bundles on the evening before the hearing. This, he says, did not allow him time to prepare an answer to Aviva's arguments or to make available several important documents which were not in the court bundles that Aviva provided.

Once again, and despite Mr Aslam's clear and persuasive submissions, I am satisfied this an appeal on this ground would not have a real prospect of success. It is apparent from the summary of the Recorder's findings and the conclusions that he reached as to Mr Aslam's credibility that he was not satisfied of a number of different but essential elements of Mr Aslam's claim. It was for him to establish that he had bought the equipment in issue and also that it had been stolen from him in the manner that he alleged and that he had complied with the various conditions in the insurance policy for the making of a successful claim under it. The Recorder made a case management decision; and the documents to which Mr Aslam says he was unable to refer at the hearing may have tended to support his case that he had bought the equipment in issue but those documents cannot, it seems to me, undermine the Recorder's conclusions as to the other essential elements of Mr Aslam's claim and he has wholly failed to persuade me this afternoon that the Recorder's failure to consider them, if that is what it was, has materially affected the ultimate conclusions to which he came.

Accordingly and as I say, despite Mr Aslam's submissions to me, I am satisfied that an appeal would not have a real prospect of success and there is no other compelling reason why an appeal should be heard. This application is therefore dismissed.