England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT OXFORD
HH JUDGE HARRIS QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/05/2016

Lord Justice Tomlinson :

1. This is an appeal by two unsuccessful Claimants against an Order made in the Oxford County Court on 20 May 2014, although it is in fact undated. By that Order the judge dismissed the Claimants' claims in the action, directed them to pay the Second Defendant's costs, to be assessed if not agreed on the indemnity basis, and directed an interim payment of £10,000 on account of costs within 14 days. The Claimants claimed to have suffered whiplash injuries in a motor accident on 17 September 2008 so the trial took place more than 5½ years after the alleged accident. They both claimed general damages and in addition the First Claimant claimed special damages consisting principally in the loss of his vehicle, which insurers treated as a write-off, and the cost of hiring a replacement vehicle. The Second Claimant too had a small claim for special damages.
2. Proceedings were issued in May 2010 naming the driver of the colliding vehicle, Mr Barry Hayes, as the First Defendant and Allianz Insurance Plc as Second Defendant. Allianz accepts that at all material times it provided to the First Defendant a policy of insurance covering third party liability incurred in respect of his driving of a Vauxhall Astra van, the other vehicle allegedly involved in the accident in question. It was alleged that the accident occurred in consequence of the negligence of the First Defendant in driving the Astra van and that the Second Defendant would be liable to satisfy any judgment given against its insured, the First Defendant, which he did not himself satisfy.
3. So far as I can see the First Defendant was never served with the proceedings.
4. The proceedings were served on the insurers who acknowledged their liability to satisfy any judgment against the First Defendant. In its first Defence served on 7 June 2010 the Second Defendant put the Claimants to proof that an accident had occurred either at all or as claimed. The Second Defendant specifically denied the allegations of loss and damage and denied causation.
5. The matter initially came on for trial before Judge McIntyre in the Slough County Court on 5 July 2012. Unsurprisingly the First Defendant did not appear and was not represented. On that occasion the Second Defendant applied for permission to amend its Defence so as to add an allegation that the claim was fraudulent. The judge adjourned the trial. His order reads, so far as material:

"IT IS ORDERED THAT

(1) The Second Defendant do have permission to amend its Defence in the terms of the draft submitted by its counsel . . .

(2) The trial is adjourned to the first open date after 31 August 2012 (time estimate 2 days). The purpose of the adjournment is to give the Claimants the opportunity to trace the First Defendant now that it is a part of the Second Defendant's pleaded case that he was or may have been complicit in a 'staged' accident."

The Second Defendant was ordered to pay the costs of and occasioned by the adjournment in any event.

6. The accident is alleged to have occurred just before 8 pm on the evening of 17 September 2008. The First Claimant is said then to have been driving his BMW 7 series motor car along Park Road between Beaconsfield and Slough in an easterly direction towards Slough. The Second Claimant was the front seat passenger. Park Road is at a certain point more or less intersected by Church Lane which runs more or less north/south. The two limbs of Church Lane are not exactly opposite one another, the northern limb being slightly to the west of the southern limb. A vehicle emerging from Church Lane onto Park Road should give way to vehicles travelling along Park Road and there were appropriate road markings to indicate that that was so. It was the Claimants' case that Mr Hayes drove his Astra van out of the northern limb of Church Lane onto Park Road without stopping or giving way and that in consequence the Astra van struck the BMW on its left hand side causing indentations to both the near side doors, front and back. In the Particulars of Negligence set out in the Particulars of Claim it is alleged that Mr Hayes failed adequately or at all to heed or act upon the presence, path, position and approach of the First Claimant's vehicle and failed to accord precedence to the First Claimant's vehicle as it passed. Requests were made of the Claimants pursuant to CPR Part 18 for further information. One question asked was:

"Please confirm what speed your vehicle was approximately travelling at the time of the accident?"

To this request the First Claimant answered:

"I estimate that I was travelling at between 35-40 mph. The speed limit for the road is 40 mph."

The Second Claimant answered:

"I cannot remember. I would estimate that it was around 30-40 mph but I wasn't driving and so cannot be sure of this."

7. The amended or in fact Re-Amended Defence was served the day after Judge McIntyre's Order on 6 July 2012. By this statement of case the Second Defendant pleaded a detailed case in reliance upon the report of an expert in accident reconstruction. In addition to its non-admission that the accident had occurred either at all or as pleaded by the Claimants, the Second Defendant contended:

"6. As to paragraph 3 of the Particulars of Claim the Second Defendant avers as follows;

a. It is noted that the Claimants allege that the material accident occurred when the Claimants' vehicle was travelling along Park Road, Slough when the First Defendant came out of a side road, namely Church Lane, and collided with the Claimants' vehicle;

b. It is further noted that both Claimants in response to the Second Defendant's Part 18 requests for further information estimate that they were travelling at between 30 and 40 mph;

c. It is yet further noted that both Claimants in response to the Second Defendant's Part 18 requests for further information state that the damage to the Claimants' car was to the nearside.

d. It is averred that the accident damage claimed to have been incurred by the two vehicles involved in this alleged accident is inconsistent with the version of events alleged by the Claimants. The damage to the Claimants' car is inconsistent with the impact being between two moving vehicles. The Second Defendant relies upon the report of Mr Gordon Pearce of GBB Forensic Collision Investigation and Research dated 5 November 2008 and the addendum report dated 19 October 2010. In addition the Second Defendant relies upon the supplementary Report of Mr Pearce dated 18 August 2011 served with this pleading.

e. For the avoidance of doubt the Second Defendant avers that the vehicle in which the Claimants allege they were travelling must have been stationary at the time it came into contact with the Vauxhall Astra Van.

f. In the circumstances it is averred that either:

i. The alleged accident was staged and that the First Defendant was complicit; or

ii. That the driver of the BMW brought the vehicle to a halt in the path of the Vauxhall Astra Van without reason and intending to cause an accident.

g. In any event the Second Defendant contends that the Claimants' alleged accident was either staged and/or contrived and is thus fraudulent."

8. The Second Defendant put a little further flesh on the bones of the new positive allegation as follows:

"7. It is further noted that the alleged accident occurred when the Claimants were travelling along Park Road and that it is alleged that the First Defendant emerged from Church Lane into the nearside of the Claimants' vehicle.

a. It is expressly averred that the junction including the sight lines of Church Lane and Park Road is such that at all material time if the accident occurred as is alleged by the Claimants, the Claimant driver would and/or could have seen the First Defendant's vehicle before it emerged from Church Lane and thereby have avoided the accident and/or have taken avoiding action;

b. It is noted that the First Claimant makes no mention of taking any avoiding action to prevent the alleged accident.

c. In the premises it is averred that it is inherently unlikely that the Claimants' vehicle would have collided with the First Defendant's vehicle in the manner alleged.

d. It is yet further averred that the junction including the sight lines of Church Lane and Park Road is such that at all material times if the accident occurred as alleged the First Defendant would have/or could have seen the Claimants' approaching vehicle and avoided the same.

e. In the premises it is averred that it is inherently unlikely that the First Defendant would have without explanation pulled out of a minor road directly into contact with the Claimants' vehicle when there was no or no good reason to do so."

Other matters were also pleaded which it was contended cast doubt upon the reliability of the two Claimants as accurate historians. I need not go into that.

9. It would seem that the accident reconstruction experts instructed by the Claimants and by the Second Defendant had in fact already met and agreed a joint report back in April 2011, 20 months before the aborted trial before Judge McIntyre. In their joint report of 26 April 2011 they said:

"2.6 The photographs of the passenger side of the BMW show vertical marks within the damage. No significant horizontal marks are apparent. In a collision in which the front of the van contacts the passenger side of a car travelling at 35 mph to 40 mph, we would certainly expect to see substantial horizontal marks and damage extending along the side of the BMW.

2.7 The width of the damage to the side of the BMW matches the width of the front of the van. If the BMW was moving at the speed claimed or even at any other significant speed, we would have expected the width of the damage to be substantially greater than the width of the van.

2.8 Mr Pearce has concluded that the BMW must have been stationary at the time of the collision. Mr Greatrix, on the balance of probability, agrees.

2.9 If the relative speed of the BMW to the front of the van was almost zero, that too would explain the absence of any substantial horizontal marks and damage. However, the damage sustained by the front of the van is biased to its nearside such that the angle of the van was directed more towards the rear of the BMW than to its front. That is inconsistent with the BMW moving at speed across the front of the van as claimed. It is also inconsistent with the van driver intending to turn left out of the junction.

2.10 Mr Greatrix suggests that the BMW was brought to a halt from 35 mph to 40 mph because Mr Rizan realised that the van was not likely to stop at its give way lines."

10. Quite how the Claimants would have grappled with this evidence at the trial in July 2012 will never be known, but paragraph 2.10 of the joint experts' report was prescient in that on 13 July 2012 the Claimants put in a Reply to the Re-Amended Defence in which, at paragraph 6(b) they said:

"The speed referred to by the First and Second Claimants within their Part 18 Replies was given in relation to the estimated speed the First Claimant's vehicle was travelling at along Park Road when the accident occurred – not the speed at which the First Claimant's vehicle was travelling at the time of the actual impact. Should the Second Defendants have required the Claimants to confirm the speed at which their vehicle was travelling at (sic) when the impact actually occurred then the Claimants aver that this should have been raised as a specific question within the Part 18 Request for Further Information. It is the Claimants case that that the First Claimant braked at the time of realisation that the First Defendant's vehicle was not going to stop at the give way markings. The Claimants are in agreement that the speed of their vehicle at the time of actual impact would have been slow or almost stationary however, they do not agree that their vehicle was completely stationary. Seat belt injuries caused by the hard braking of their vehicle is evidenced within the First and Second Claimants' GP records."

11. On 2 August 2012 the trial was re-listed for 6/7 December 2012 at Reading County Court.
12. On 4 September 2012 the Claimants' solicitors took a Witness Statement from Mr Hayes which he signed under a statement of truth.
13. On 22 October 2012 the Claimants issued an Application Notice seeking permission to adduce hearsay evidence from the First Defendant Mr Barry Hayes. For the purposes of the Civil Evidence Act 1995 and CPR Part 33 "hearsay" means a statement, made otherwise than by a person while giving oral evidence in proceedings, which is tendered as evidence of the matters stated. I infer therefore that the Claimants were seeking to introduce evidence from Mr Hayes in the shape of his witness statement without the need to call him to give evidence at the trial. We have not been shown the evidence in support of the application.
14. On 19 November 2012 Deputy District Judge Chohan sitting at the Slough County Court refused that application. Having heard the solicitor for the Claimants and Counsel for the Second Defendant he ordered:

"The Claimants be given permission to rely on the witness statement of Mr Barry Hayes dated 04 September 2011, with the Court having refused permission to the Claimants to adduce hearsay evidence from the First Defendant Mr Barry Hayes."

04 September 2011 is an obvious error for 04 September 2012. I can surmise that the Claimants may have failed in their attempt to introduce Mr Hayes' witness statement as hearsay evidence in reliance upon the provisions of the Civil Evidence Act 1995 and CPR 33 because they were unable to give a reason why Mr Hayes would not be called to give oral evidence at the trial.

15. As long ago as September 2010 District Judge Jones at Slough County Court had directed that the parties should by no later than 26 November 2010 mutually exchange all lay witness evidence upon which they intended to rely. I infer therefore that the purpose of Deputy District Judge Chohan's Order was to allow the Claimants to call Mr Hayes to give evidence in accordance with his witness statement notwithstanding non-compliance with this direction. I do not understand the Order to be giving permission to the Claimants to rely upon the witness statement as evidence of the truth of what was stated therein without the need to call Mr Hayes to give oral evidence. That would be contrary to the judge's refusal to permit the Claimants to adduce hearsay evidence from Mr Hayes.
16. My understanding in that regard is fortified by the fact that on 29 November 2012 the Claimants issued a Witness Summons requiring Mr Hayes to attend the trial at Reading County Court on 6/7 December 2012 in order to give evidence. However so far as I can see that Witness Summons was never served on Mr Hayes – we have certainly been shown no Certificate of Service. On the following day 30 November 2012 an accident investigator instructed by the Claimants' solicitors signed a witness statement in which she said the following:

"4. IAI were instructed to attend upon the property of the First Defendant, Mr Barry Hayes at 9 Nixey Close, Slough, SL1 1NG in order to explain that he had to attend trial on 06 and 07 December 2012 at Reading County Court and/or he had to provide the Court with his medical records and a letter from his GP confirming that he was medically unfit to attend court.

5. I attended Mr Hayes' property during the evening of Friday 23 November 2012. Whilst I could hear movement within the property, the door to his property was not answered. I telephoned his mobile telephone however, there was no answer. I posted a letter with my contact details on it through his letter box asking that he telephone me as soon as possible. I also phoned the number on the file for Mr Hayes' carer, without success.

6. I then knocked on his neighbours' properties. I was unable to obtain the names of the people who I was speaking to but I was informed that he was a recluse who very rarely left the house. I was told that he had an alcohol dependency issue.

7. At 19.21 hours on Friday 23 November 2012, I received a telephone call from a gentleman who introduced himself as Steve Ferley. He confirmed that he was a close friend of Mr Barry Hayes. He confirmed that Easthams Solicitors Limited had written to Barry Hayes directly enclosing authorities which would allow Mr Hayes' GP to disclose medical records to them. Mr Ferley assured me that he would get Mr Hayes and his General Practitioner to sign the documents and would return them to Easthams Solicitors Limited.

8. It was confirmed by Mr Ferley that Mr Hayes was very ill and would not be able to attend court. He stated that Mr Hayes had prostrate (sic) Cancer.

9. I have had no direct contact from Mr Barry Hayes despite my best efforts. I confirm that I have reported back to Easthams Solicitors Limited."

Quite on what basis Mr Hayes could have been told he had to attend court I am unsure. Efforts to obtain confirmation from Mr Hayes' GP that he was unfit to attend court in December 2012 were unavailing. His attending GP was absent on leave and other doctors in the practice were unwilling to comment. Ultimately on 3 October 2013 a letter was obtained from the partnership saying that Mr Hayes had recently undergone major cancer surgery and was at that stage unable to travel from Slough to Reading for two consecutive days in order to be cross-examined at trial. That however is of no relevance to the position either in December 2012 or May 2014 when the trial ultimately took place in Oxford.

17. Meanwhile the Second Defendant, for its part, had not been idle. A claims investigator instructed by it, Mr Dudley Walton, visited Mr Hayes on 28 November 2012 and took a statement from him. In his own witness statement dated 3 December 2012 Mr Walton said:

"2. I was instructed by the solicitors of the Second Defendant, to attend upon and to take a witness statement from their policyholder BARRY HAYES who had been traced to an address in Slough – 9 Nixey Close SL1 1NG.

3. I first called here on the 22 November 2012 and found this to be a small local authority first floor flat but nobody was at home. A neighbour told me that the occupant Mr Hayes went out most mornings. I left my usual request for contact from Mr Hayes but received no response.

4. I called back on 26 November 2012 and again found nobody at home. I waited close by but nobody came in or out and again I left a card.

5. I subsequently received a call from an individual with an Asian accent by name of IMRAN who told me he would help fix up an appointment on behalf of Mr Hayes.

6. I called by appointment to see Mr Hayes at his home, a first floor flat, on 28 November 2012.

7. When I arrived I noticed that 2 young males aged 25-30 – one of Asian appearance the other of a dark skinned appearance were leaving the flat premises. Mr Hayes was to later tell me they had visited his flat just prior to my appointed time but he refused to tell me why they had been there or the purpose of their visit. He denied they had any involvement concerning his alleged accident but I remained concerned about their attendance at the premises. He said they were "just mates" but they seemed to me to be from a different social and cultural background.

8. He agreed to give me a statement regarding his accident after I had explained to him the purpose of my visit. I carefully explained to him he was a separate party to this action and that he was signing an important legal document with serious consequences for providing incorrect information.

9. He allowed me to take his photograph which I exhibit as DW1.

10. He confirmed he was in a fit state to give a statement – to me he appeared coherent and he had no difficulty in hearing at all.

11. He agreed to assist where he could but claimed to be suffering from a poor memory.

12. Whilst I was with Mr Hayes he was accompanied by his friend Mr Steve Fearnley.

13. I obtained a statement from Mr Hayes which I exhibit as DW2 but found his memory loss to be very selective and I was not convinced his memory was the issue with the lack of facts available. As questions were put to him Mr Hayes swore when he did not appear to have an answer.

14. Eventually he told me that my presence was annoying him and he therefore wished to discontinue before I had completed asking him all the questions which would normally arise from a matter such as this.

15. Whilst I was with him he also provided me with a sketch plan of the accident which I exhibit as DW3. When asked he was unable to draw anything regarding the finishing positions of the vehicles and was also vague in his statement concerning the aftermath of the accident.

16. He confirmed under no circumstances was he prepared to go to court to give his evidence. He told me that his currently undiagnosed prostate problems made it impossible for him to travel to court. He had not had full tests so this reason which had not been mentioned to the previous investigators was seemingly of recent origin.

17. I found this statement regarding his illness to be at odds with him being away from the flat when I had called on previous occasions – during my discussion with him he told me he had been looking after Mr Fearnley at his home as Mr Fearnley had recently undergone a knee operation.

18. I suggested to him that the visit to court would be no more arduous but he told me this whole case was nothing to do with him and would not be attending.

19. I can also advise that whilst I was taking Mr Hayes statement his friend Mr Fearnley remarked that Mr Hayes had never had an accident in the van. At that point Mr Hayes laughed off the remark and continued to maintain the accident had occurred.

20. I pointed out the fact that he would have to sign a statement of truth about this but he shrugged his shoulders and told me it was not his problem.

21. Subsequent to that visit to Mr Hayes I undertook some research on the purpose of his journey – an alleged trip at night to drop a friend off at some shops in the village of Stoke Poges to the north of Slough. There was to the best of my knowledge no row of shops in Stoke Poges and I attach a web page from the local council confirming this DW4."

18. Mr Walton wrote out in manuscript a statement recording Mr Hayes' answers to his questions. The statement runs to 15 pages and is accompanied by a rudimentary accident diagram drawn by Mr Hayes.
19. On 16 May 2013 the Second Defendant obtained an Order from District Judge McCulloch, by consent, permitting it to rely on the statements of Mr Hayes dated 28 November 2012 and of Mr Walton dated 28 November 2012 – the latter obviously a mistake for 3 December 2012. Again that Order was not permitting reliance on the contents of the witness statements as evidence of the truth of what was stated therein without the need to call the makers of the statements. The Second Defendant was being allowed to call these witnesses to give evidence in accordance with their witness statements notwithstanding their statements had not been the subject of mutual exchange at the earlier date ordered.
20. On 19 September 2013 it was ordered that the trial be listed with an estimate of 2 days on the first open date after 3 February 2014.
21. On 29 October 2013 the trial was listed to take place at Oxford on 20/21 May 2014.
22. The trial was duly heard by Judge Charles Harris QC on 20 May 2014. It did not go into the second day and the judge rightly complimented counsel at the end of the day on their having saved a second day's costs. Mr Hayes was neither present nor represented.
23. The First and Second Claimants gave evidence after which counsel then appearing for them, Mr Jackson, closed his case. At that point the judge turned to Mr Ian Clarke, counsel for the Second Defendant, clearly expecting that he would be calling no evidence. However Mr Clarke indicated that Mr Jackson wished to cross-examine Mr Walton. The judge indicated, quite correctly, that Mr Clarke was under no obligation to call Mr Walton unless he had undertaken to do so although obviously if he was not called the judge would have no evidence from him. Mr Clarke proceeded to call Mr Walton. It is unclear and immaterial whether he did so pursuant to an undertaking so to do. Mr Clarke wished to ask Mr Walton about the circumstances in which he had taken a statement from Mr Hayes in November 2012. The judge enquired as to the position concerning that statement and in particular its admissibility. The transcript records Mr Clarke as giving a rather confused response to the following effect "there is already permission for the First Defendant to rely upon it . . . from the previous order." As recorded that cannot be correct as the First Defendant took no part in the proceedings. Furthermore if it was an intended reference to the First Claimant it was again wrong since the statement of Mr Hayes upon which the First Claimant had obtained permission to rely was that taken by the First and Second Claimants' solicitors in September 2012. Presumably Mr Clarke was referring to the Order obtained by the Second Defendant in May 2013, but that as I have already pointed out did not permit reliance upon the statement as evidence of the truth of its contents without the need to call Mr Hayes. Having ascertained that it was agreed that he should read the statement "for what it's worth" the judge proceeded to read Mr Hayes' witness statement of 28 November 2012. In cross-examination Mr Jackson wished to establish that, before visiting Mr Hayes, Mr Walton had read the witness statement given by Mr Hayes to the Claimants' solicitors in September 2012. At this point in his cross-examination Mr Jackson in turn invited the judge to read that statement also, and the judge did so.
24. The judge's extempore judgment is succinct and I propose to reproduce it all:

"1. This is a claim for damages for personal injury and consequential loss brought by Messrs Mohamed Rizan and Mohamed Wilshad (who are I think gentlemen of Tamil origin, I am not sure whether Indian or Sri Lankan) who have been in England for quite some time and who both describe themselves as part-time taxi drivers.

2. On 17^th September 2008 (i.e. getting on for six years ago), the contention is that there was a collision between a BMW 7 Series motor car, which was being driven by the First Claimant, and an Astra Van driven by Mr Hayes who is the First Defendant. It should be said that Mr Hayes has played no part in this trial and the interests of the Allianz Insurance Company have been dealt with by it becoming a party and dealing with the Claimants' claim itself.

3. Efforts were made, it appears, to get Mr Hayes to come to Court; he was visited by an Inquiry Agent, Mr Walton, a Claims Investigator, who took a statement from him. Another statement had been taken from him, but he has stoutly resisted the temptation to come to Court to give evidence.

4. What the Claimant says happened, broadly speaking, is that he was driving along a road called Park Road, which seems to be something of a rural road although running between Beaconsfield and Slough. It was, it appears, in the evening at about 8pm. The BMW was going towards Slough and an Astra Van, which it is said was driven by the First Defendant, came down Church Lane from the left of the BMW. The situation is illustrated in many plans and photographs. It emerged without stopping, colliding with the side of the BMW.

5. The reading of the Statement of Claim, an account given in the medical report, the Further and Better Particulars and the Claimant's own statement give no indication whatever that the car being driven by the First Claimant was doing anything other than driving at 30 to 40 mph at the time of the accident, as it passed the mouth of Church Lane. If it was doing that, it is inconceivable that the damage which has been seen by the engineer instructed by the Defendant could have occurred then, because the damage to the BMW was simply indentations to both the doors on the nearside and there was no, as it were, lateral damage before or after these areas of indentations.

6. Both of the engineers in a joint statement agreed:

"The photographs of the passenger side of the BMW show vertical marks within the damage. No horizontal marks are apparent. In a collision in which the front of a van contacts the passenger side of a car travelling at 35 to 40mph, we would certainly expect to see substantial horizontal marks and damage extending alongside of the car, in this case the BMW. The width of the damage to the side of the BMW matches the width of the front of the van".

Both experts concluded that, on the balance of probability, the car must have been stationary at the time of impact.

7. This the Claimant attempts to deal with when he comes to give evidence today by saying that he was indeed stationary at the time. He had seen this car coming and braked as hard as he could. His car (he said) was stopped at the point of the impact in the middle of the junction and he was hit on the left-hand passenger side.

8. There are difficulties about that from the point of view of stopping distance and reaction times and visibility, into which it is probably not necessary for me to go in any details save that it would have been extremely marginal, if the speed had been anything above 30mph, to have been able to stop from 35mph or so before the point of impact. But the significant point is that nowhere in the Letter before Action, the Statement of Claim, the account given to the Doctor or in the Claimants' own statement or in the Further and Better Particulars, was it thought appropriate for Mr Rizan to explain what he has now explained; that he had actually stopped.

9. One should make some slight allowance for language in this case; Mr Rizan is not a native English speaker, but his English is certainly perfectly serviceable and although a translator or interpreter was engaged, her services were not actually needed. I am quite satisfied that had Mr Rizan been saying all along that he braked as hard as he could and stopped and then been hit, that would have been reflected in the papers. What seems to have happened is that once it was appreciated that the engineering evidence was such that his case simply could not be right on the basis that it was being advanced, then the case altered.

10. Curiously enough, his passenger did not alter his evidence and he maintained that the car was still going at 35mph or 40mph, at the time of the accident. He did so both in Further and Better Particulars and in evidence. Not, it should be said, that one has the greatest of confidence in the evidence given by the Second Claimant since he had apparently been involved in some ten motor car collisions between August 2007 and March 2011, an incidence of accidents which he had taken some steps to avoid revealing when asked about.

11. The case had to proceed without any evidence being given by Mr Hayes, because he did not come. But Mr Hayes' statements were put before the Court in the form of exhibits to what Mr Walton said. Mr Hayes in his statement said that he was alone in his van, he was dropping off a friend of a friend, but did not know his name, and he thinks he:

"...sort of slipped off the brake. I wasn't taking enough attention",

And then said:

"The Claimant's car was going from my right to my left, hard to tell the speed in the dark"

Incidentally, the Claimant said it was not dark:

"He was going at 30 or 40 mph, something like that. Basically, he didn't have a chance to stop as I went straight out at him".

So he was giving an account which, on the face of it, was also completely inconsistent with the evidence given by the two engineers who were in agreement with each other.

12. Curiously, when the Inquiry Agent Mr Walton (who seemed a good quality witness) had gone to take a statement from Mr Hayes, he discovered two gentlemen of Indian appearance just leaving his house. The explanation given by Mr Hayes about that when asked was:

"The two lads here earlier were just mates. One was Imran; I don't know the other one".

Perhaps a little odd that he had a mate whose name he did not know. It follows from this that one can have no confidence whatsoever in anything that Mr Hayes' is reported as having said. The Second Claimant's account of the accident taking place at 30 to 35mph must be wrong because it is inconsistent with the engineering evidence, and the Claimant's final account of the accident taking place while he was stationary is difficult to believe, because it is completely inconsistent with every indication that he had given beforehand.

13. In those circumstances, this is a case in which I cannot possibly be satisfied that the account given by the Claimant is a satisfactory account and in those circumstances this claim fails.

14. It is perhaps right to observe that it has, as one might expect perhaps given the antiquity of this case, come to trial before. On 5^th July 2012 it appears that a trial started. It is not quite clear what happened, but the Defendants I think (probably the Second Defendants) said that they wanted to allege fraud and for some reason the whole trial was abandoned in order to enable this to be done and for further investigations to take place. It has taken getting on two years since then for this case to get back before the Court. It is a wholly unsatisfactory piece of litigation.

15. In those circumstances, I do not need to make any findings about what amount I would have awarded had I given the Claimant damages for the whiplash injuries, which both contended that they had. It should be observed that there had been inconsistencies in describing the symptoms, both by the First Claimant and by the Second Claimant; the First Claimant, for example, saying the he told the GP very soon after that he had pain in his right shoulder, but he told the examining specialist that he had pain in the left shoulder, immediately after the accident. Anyway, I do not propose to assess damages, save to say they would have been modest.

16. There is a car hire claim for £17,272, because the Claimant immediately contacted a claims organisation and was equipped with a Mercedes car at something over £200 a day, which he kept for 73 days, although it was for far less than that time that he was standing out of pocket. He received a cheque, as I understand it on his own evidence, on 10^th October of that year for the full pre-accident value of the car.

17. It follows that there will be judgment for the Defendant."

25. At the conclusion of the judgment the following exchange is recorded:

"MR CLARKE: Could I just clarify…

HHJ HARRIS QC: Do you want me to say whether or not I find positively that there is fraud here? I think more likely than not. Whether I am satisfied on the criminal burden of proof is perhaps more material since it is akin to a criminal burden of proof. A very high standard of proof is needed in civil proceedings in order to establish fraud. If it were necessary to do so, which it isn't, I would find that this was a fraudulent claim. Now, what's the costs position?"

26. After a short discussion about costs the judge awarded costs against the Claimants on the indemnity basis, seemingly without opposition from Mr Jackson, and notwithstanding that Mr Clarke for his part indicated that it was unlikely to make any significant difference to the Second Defendant's recovery. The formal Order subsequently drawn up to which I have referred at paragraph 1 above makes no mention of the contingent finding of fraud against the Claimants.
27. I would just add this in relation to paragraph 16 of the judgment. The First Claimant claimed to have bought his vehicle for £17,000 on 17 April 2008, i.e. 5 months before the alleged accident. Vehicle assessors instructed by the First Claimant's solicitors after the alleged accident assessed its pre-accident value at £11,000. They considered that the repair cost would be £6,843.68 and they recommended that the claim, by which I imagine they meant a claim against insurers, be dealt with on a total loss basis. Evidently they were proceeding upon the basis of some convention agreed in the industry. They estimated that the salvage value was £3,500 and recommended a settlement at £11,000. It was the First Claimant's evidence that he was unhappy with the valuation but that after some negotiation he agreed "a pre-accident settlement of my vehicle in the sum of £7,500." The judge records his receipt of that amount, although it is not clear by whom the payment was made. If it was made by the Second Defendant pursuant to some agreement between insurers, it seems clear that it was paid without admission of liability. It was the First Claimant's evidence that he was told that he had paid over the odds for his car at the time when he bought it which he was "a little disappointed about." At all events he kept the vehicle, and according to his evidence sold it in its damaged state for £2,500.
28. The First Claimant's evidence as to what transpired after the alleged accident was:

"16. After we had exchanged our details the Defendant (Mr Hayes) left the scene of the accident. He was keen to leave because his radiator was leaking and he wasn't sure how much longer his car would work.

17. I started to drive off but my car was making strange noises so I stopped and parked the car. Mohammed Rilshad told me he knew of a local accident management company who could recover my car and sort out a claim. I called them and they made arrangements to come and recover my car. After my car had been recovered I flagged down a passing taxi and went home."

29. On 22 September 2008 the Claimant's solicitors instructed JP Morriss Assessors Limited to attend at Fast Claims, 23 Ladbrooke Road, Slough, Berkshire SL1 2SR to inspect the First Claimant's vehicle. There is no independent evidence as to the vehicle being conveyed to the address in Slough, although Mr Thompson of JP Morriss recorded in his report that there was a recovery charge of £150 outstanding, presumably to Fast Claims, although no invoice is in evidence. There is no independent evidence as to the location from which the vehicle was recovered, if it was. Mr Thompson of JP Morriss attended at Fast Claims on 24 September.
30. There is no evidence as to when Mr Hayes first reported the alleged accident to his insurers or brokers. He is however reported to have called his insurers on the telephone to "update" them on 1 October 2008. His Vauxhall Astra was not independently examined until Tuesday 28 October when the Second Defendant's engineer inspected it by appointment outside Mr Hayes' home. Mr Hayes was not present.
31. Mr Stewart Patterson, who appeared for the Claimants on this appeal although not of course below, submitted to us that the judge's finding of fraud was unsupportable, and that in the absence of a finding of fraud the judge could not properly have dismissed the claim because on the basis of the evidence before the judge either there had been a conspiracy between the Claimants and Mr Hayes or there had been an accident. More specifically, he submitted:

"a. Even on the assumption that the Learned Judge did not accept the first appellant's account of precisely how the collision occurred, then, absent a finding of fraud, the evidence was sufficient to justify a finding, on a balance of probabilities, that Mr. Rizan's vehicle had been damaged as a result of the negligent driving of Mr. Hayes.

b. Absent a finding of fraud the evidence was to the effect (i) that a collision had indeed taken place, (ii) that it occurred while the first appellant had been driving his car on what was a comparatively major road, and (iii) that it occurred because the respondent had driven his car out of a comparatively minor intersection into a collision with the first appellant's vehicle.

c. On those facts, and absent a finding of fraud, the possibility that the collision was caused by the negligence of the first respondent was more likely than any other possibility; indeed it is submitted that it is the only conclusion which could, on a balance of probabilities, properly have been reached.

d. Absent a finding of fraud, the fact that a question might have arisen, by way of the engineers' reports, as to the precise details of what had happened, would not affect that conclusion.

e. Accordingly, it is submitted that a dismissal of the claim without a finding of fraud was incorrect, as well as artificial in the circumstances of this case."

Discussion

32. In my opinion the judge was unwise to express a view on the question whether the claim was fraudulent, and doubly unwise to do so without giving reasons for his conclusion over and above those which he had already given for his dismissal of the claim. The judge would have been better advised to cleave to his initial, correct, view that, as the Claimants had failed to satisfy the burden of proof on them concerning the occurrence of the alleged accident, it was unnecessary to address the question of fraud. It is apparent that the judge would not have expressed a view on the point had he not anticipated that that is precisely what Mr Clarke was about to ask him to do, but he would in my view have been better advised simply to point out, as of course he did, that resolution of that question was unnecessary, and to have left it at that.
33. Although not relied upon by Mr Patterson, one particular problem about the judge's conclusion is that he does not spell out whether he regarded all three actors, the Claimants and Mr Hayes, as implicated in the fraud. It will be recalled that the Second Defendant put forward two alternatives, one that the accident was staged and that Mr Hayes was complicit, the other that the First Claimant deliberately brought the vehicle to a halt in the path of the Astra without reason intending to cause an accident.
34. As one would expect of so experienced a judge, Judge Harris plainly had in mind the guidance given in cases such as In re H and Others (Minors) [1996] AC 563 by Lord Nicholls of Birkenhead to the effect that:

"When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. . . .

Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in In re Dellow's Will Trusts [1964] 1 WLR 451, 455: The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.""

35. What the judge did not do however is to enunciate his reasons for his conclusion that a fraudulent scheme such as one or other of those proposed by the Second Defendant had occurred. He did not, at any rate overtly, ask himself whether there were any inherent improbabilities in that conclusion which needed to be overcome or explained, such as the good character of the actors involved, their different ethnic, cultural and linguistic backgrounds, the recent acquisition of the BMW and its use for chauffeuring or taxi services, the potentially modest size of any award for whiplash injury, all of which might at first blush tell against a fraudulent conspiracy, or against one including all three actors.
36. For these reasons therefore I would set aside the judge's finding that, had it been necessary so to decide, the claim was fraudulent. I should record that, on being informed at the conclusion of Mr Patterson's argument that the court was minded to take this course, whilst nonetheless upholding the judge's dismissal of the claim, Mr Clarke very pragmatically did not seek to support the judge's contingent finding.
37. I turn therefore to Mr Patterson's submission that in the absence of a finding of fraud the judge was compelled to uphold the claims. If the alleged accident did not occur, how, he asked rhetorically, did the damage occur? It is here that I part company with Mr Patterson. The judge was not faced with a binary choice between conspiracy or an accident as alleged. It was not for the Second Defendant or the court to explain how the damage, which was first seen by an independent witness on 25 September 2008, occurred. Mr Patterson's submission falls into the error identified by the House of Lords in Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 WLR 948. That was a marine insurance claim by shipowners against hull underwriters for an actual total loss where the burden of proof lay on the owners of the vessel to establish that the vessel had been lost by perils of the sea. The trial judge, Bingham J, found that seawater had entered through a large aperture in the shell plating on the port side. The judge was unable to make a finding one way or the other whether the ship was seaworthy, so the owners were unable to suggest that if a seaworthy ship sinks in unexplained circumstances in good weather and calm seas, there is a rebuttable presumption that she was lost by perils of the sea. In any event the ingress of water was explained by the aperture in the shell plating. The only explanation for that for which owners ultimately contended was collision with an unidentified submerged submarine travelling in the same direction as the ship and at about the same speed. Although under no obligation to plead a positive case, underwriters did set out positively to prove that the aperture was caused by prolonged wear and tear resulting in the vessel's shell plating opening up under the ordinary action of wind and wave and without collision with any external object. On the basis of the expert evidence the judge concluded that the wear and tear theory failed on the basis put forward. He also recorded that he regarded the submarine theory as extremely improbable, but he nonetheless concluded that this had been the proximate cause of the loss. In reversing his decision Lord Brandon said, at page 954 and FF:

"My Lords, the result of underwriters putting forward this alternative cause of the ship's loss was to lead Bingham J. into approaching the decision which he had to make as being a simple choice between the cause of loss relied on by the shipowners and the alternative cause of loss put forward by underwriters. Although he had in an earlier part of his judgment referred expressly to the observations with regard to burden of proof made by Scrutton L.J. in La Compania Martiartu v. Royal Exchange Assurance Corporation [1923] 1 K.B. 650, 657, which I quoted earlier, he does not seem, when he came later in his judgment to the point of actual decision, to have given any consideration at all to the third possible solution to the case contemplated in those observations. That third possible solution would have been to say that he was left in doubt as to the proximate cause of the ship's loss, and that, in those circumstances, the shipowners' actions should be dismissed on the simple ground that they had not discharged the burden of proof which lay upon them.

. . .

The passages which I have quoted from Bingham J.'s judgment amply support the observations about his approach to the case which I made earlier. These observations were to the effect that he regarded himself as compelled to make a choice between the shipowners' submarine theory on the one hand and underwriters' wear and tear theory on the other, and he failed to keep in mind that a third alternative, that the shipowners had failed to discharge the burden of proof which lay on them, was open to him.

As regards the shipowners' submarine theory, Bingham J. stated in terms that he regarded it as extremely improbable, a view with which I think it unlikely that any of Your Lordships will quarrel. As regards underwriters' wear and tear theory, it was contended by counsel for the shipowners that Bingham J. had ruled it out as impossible. The language used by him in different places is, however, ambivalent, and I think that it would be more accurate to say that he regarded the wear and tear theory not as impossible, but as one in respect of which any mechanism by which it could have operated was in doubt.

My Lords, the late Sir Arthur Conan Doyle in his book The Sign of Four, describes his hero, Mr. Sherlock Holmes, as saying to the latter's friend, Dr. Watson: "How often have I said to You that, when You have eliminated the impossible, whatever remains, however improbable, must be the truth?" It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J. decided to accept the shipowners' submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable.

In my view there are three reasons why it is inappropriate to apply the dictum of Mr. Sherlock Holmes, to which I have just referred, to the process of fact-finding which a judge of first instance has to perform at the conclusion of a case of the kind here concerned.

The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.

The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated. That state of affairs does not exist in the present case: to take but one example, the ship sank in such deep water that a diver's examination of the nature of the aperture, which might well have thrown light on its cause, could not be carried out.

The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden.

In my opinion Bingham J. adopted an erroneous approach to this case by regarding himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible. He should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely, that the evidence left him in doubt as to the cause of the aperture in the ship's hull, and that, in these circumstances, the shipowners had failed to discharge the burden of proof which was on them."

38. This learning was succinctly summarised by Lord Mance in Sienkiewicz v Greif UK Ltd [2011] 2 AC 229 at 296:

"In other cases, there will be continuing good sense in the House of Lords' reminder to fact-finders in Rhesa Shipping Co SA v Edmunds (The "Popi M") [1985] 1 WLR 948 that it is not their duty to reach conclusions of fact, one way or the other, in every case. There are cases where, as a matter of justice and policy, a court should say that the evidence adduced (whatever its type) is too weak to prove anything to an appropriate standard, so that the claim should fail."

39. In the present case the Claimants were seeking a judgment against the First Defendant Mr Hayes and not against the Second Defendant underwriters, but nothing turns on that. Mr Hayes took no part in the trial and the Claimants were obliged to prove their case against him. The only evidence adduced to the effect that these two vehicles had come into collision at the time and in the circumstances alleged came from the Claimants themselves. As the judge observed at paragraph 11, no evidence was given by Mr Hayes. By that he meant that Mr Hayes had given no evidence either orally or in the shape of a witness statement admitted in evidence pursuant to the Civil Evidence Act 1995 and the Rules of Court made thereunder. As the judge quite correctly noted by his formulation in paragraph 12 of his judgment, referring to what Mr Hayes is reported as having said, the two witness statements of Mr Hayes which he read were not admissible in evidence as proof of what was stated therein. Mr Patterson acknowledged that there was before the judge no admissible evidence from Mr Hayes. The conclusion of the experts that the two vehicles had come into collision albeit at a time when the BMW was stationary does not assist in tying the impact to the circumstances and place alleged. I would also emphasise that stationary means not moving, not slow or almost stationary, which is what the Claimants alleged in their Reply was the state of the BMW at the moment of impact. Thus the court needed to be satisfied that the evidence of the Claimants as to the occurrence of the accident was reliable evidence upon which it could make findings of fact on the balance of probability.
40. The judge gave his reasons for regarding the evidence before him as unreliable and we would not be justified in interfering with that conclusion unless we regarded it as a conclusion to which no reasonable judge could have come. Far from being so persuaded I find the judge's reasons, with one exception, cogent and compelling. At the very least the judge's conclusion falls well within the ambit of reasonable decision-making.
41. I agree with Mr Patterson that the fact that Mr Walton observed two gentlemen of Indian appearance leaving Mr Hayes' house when he visited him four years after the alleged accident was of no probative value. More to the point however was that, as the judge pointed out, Mr Hayes did not know the name of one of his alleged friends. The short point however is that the judge was right to recognise that Mr Hayes' witness statements were not evidence of the matters stated therein, and right moreover to record that Mr Hayes' reported account of the accident was inconsistent with the agreed accident reconstruction evidence. The judge might have added that Mr Hayes' reported account was also inconsistent in important respects with what had become the Claimants' evidence. In his statement given to Mr Walton Mr Hayes said that the BMW "carried on along the road" after the accident and that "they managed to stop their car on the left up the road after the accident." He said that he had not gone to look at the damage to the other vehicle because "the other car stopped too far up the road after the accident." This is obviously inconsistent with the BMW being stationary at the point of impact.
42. Mr Patterson was critical of the judge's reasons for regarding the Second Claimant as an unreliable witness. First, he said that the judge had overlooked his evidence in re-examination. In re-examination Mr Jackson asked him:

". . . your evidence has been that at the time of the accident you were travelling at 30 miles an hour. At the time of the impact, when the two vehicles touched, collided, what speed were you travelling then?"

To which his answer was:

"There's no travelling, the car stopped at zero speed. The car at the moment the car hit everything stopped. All I can see was the car on the left hand side, this car's there, that's all I can see."

I do not agree that that answer assists the Claimants. It is not an answer to the effect that the BMW had braked in anticipation of an impact and that by the time of the impact the car was stationary. We must also remember that the judge saw and heard the witnesses give their evidence, an advantage denied to us. I have already set out, at paragraph 10 above, how this point about speed before impact and speed at impact was sought to be rationalised by the Claimants in their Reply, which was a precursor to how the First Claimant at any rate sought to put it in evidence at trial. I find the attempted rationalisation acutely unconvincing, and that is plainly how it struck the judge, even after he had made due allowance for English not being the First Claimant's native tongue.

43. Mr Patterson also suggested that the fact that the Second Claimant appeared to have been involved in an unusually high number of accidents, ten in less than four years, was of itself a "weak" reason for not accepting his evidence. That was not however the judge's reason for lacking confidence in his evidence. The judge's reason was the Second Claimant's apparent anxiety that his unfortunate record should not come to light. That is a telling point.
44. Accordingly I would uphold the judge's dismissal of the Claimants' claims.
45. Mr Clarke accepted that our conclusion that the finding of fraud should be set aside necessarily entailed that the direction that the Second Defendant's costs should be assessed on the indemnity basis should likewise be set aside. Formally therefore I would dismiss the appeal save only that the direction that the Second Defendant's costs should, if not agreed, be assessed on the indemnity basis should be set aside and there is to be substituted therefor an Order that the Second Defendant's costs should, if not agreed, be assessed on the standard basis.

Lady Justice Rafferty :

46. I agree.

Lord Justice Briggs :

47. I also agree.