English and Welsh Courts - Miscellaneous

IN THE COUNTY COURT
AT CENTRAL LONDON

		26-29 Park Crescent, London W1N 1HT
		30th June 2008

HIS HONOUR JUDGE DEAN QC:

1. The hearing of this action took place on 24^th, 25^th and 27^th June 2008. Today is Monday 30^th June and this is my judgment reserved from last Friday. The appearances were as follows. The claimant was represented by Mr. Stuart Nichol and the defendant was represented by Mr. Matthew Snarr.
2. The nature of the case is as follows. On 23^rd March 2006 the claimant's motor car was parked unattended on a public road in Edgewarebury Lane in Harrow when it was hit by a vehicle driven by one of the defendants' employees, causing extensive damage to the claimant's motor car.
3. The defendants have admitted liability for this accident and the present judgment is concerned with damages, indeed one aspect only, for reasons which I will indicate in a moment. The claimant says that the vehicle was a CTL, that is a constructive total loss and claims, firstly, the pre-accident value of the vehicle, or the capital value of the vehicle in the sum of £1,505. He has been paid this in two instalments by the defendants. In relation to these instalments there was some delay in making the payments.
4. Secondly he claims the recovery and storage charges in the sum of £765.61, which has not been paid by the defendants upon the ground that the claimant has not established he is likely to be responsible for these sums.
5. Thirdly, miscellaneous expenses were claimed in respect of which the defendants have paid a nominal £50, there being no evidence of any quantification of loss under this head.
6. Fourthly, and most importantly, the claimant claims the sum of £34,076.68 being damages in respect of the hire of a substitute vehicle under a credit hire agreement for a period of 341 days from the time of the accident to payment by the defendants of the first instalment of the capital value of the motor car. This claim is based on quantification of the claimant's head of damage being loss of use of the vehicle.
7. This claim is strongly contested by the defendants upon two grounds, both of which raise issues of wide-ranging importance and potential wider application than the facts of this case. This has been argued before me for two and a half days. At the time of the accident in March 2006 the claimant's car was not insured in respect of compulsory insurance in respect of third party risks as required by the provisions of the Road Traffic Act. The defendants contend that the claimant had been regularly driving his motor car without such insurance since 15^th December 2004 up to the date of the accident in March 2006, and that the evidence indicates that the likelihood was that he had intended to drive without insurance, and would have done so, but for the accident, at least in respect of the period of 341 days in relation to which he claims the £34,067.68, being special damage for the loss of use of the car during that period. In those circumstances the defendants say that the claimant is defeated by the application of the public policy maxim ex turpi causa (which I will describe as such for the moment).
8. Secondly, the defendants contend that the claim for £34,000 odd in respect of the credit hire upon the CTL of the claimant's vehicle, which itself was only worth £1,505 of salvage value, is unreasonable, and for various reasons the defendants are not liable to compensate the claimant upon this basis, even if the claim was otherwise legitimate notwithstanding the plea of ex turpi causa. They say that this claim cannot succeed for a number of reasons.
9. Arguments on both these issues were addressed to me during the hearing, but towards the end of counsels' submissions it became apparent that it was necessary to address additional evidence in relation to the credit hire point. There was insufficient time to do this, the case had in fact concluded at about 5.00 o'clock last Friday, and it was agreed by common consent that I would first deliver judgment on what I called the ex turpi, or illegality point, and reserve the credit hire point in order to allow both parties to adduce further evidence and make further submissions upon this issue at a later date. I also left open the final question as to the liability in respect of the comparatively minor sums claimed by way of out of pocket expenses. It follows that this judgment is limited to the ex turpi causa point.
10. The following facts were either not disputed or were clearly established by the evidence.

1. In March 2006 the claimant was the registered owner and keeper of a Fiat Bravo 1.4 SX motor car of 1370 cc with an index registration number R974VEL. This vehicle had been first registered in May 1998, hence was about 8 years old in March 2006. The claimant said he'd owned the vehicle for about 7 years, having bought it as a second-hand vehicle but he could no longer remember who had sold it to him.

2. The claimant was insured in respect of compulsory third party risks, as required by the Road Traffic Act, from 1^st August 2004 until 15^th December 2004, the insurer being Tesco, but Tesco cancelled that insurance before it had reached its natural termination as from 15^th December 2004 upon the ground of non-payment of premium.

3. On 1^st April 2005 the car was subjected to an MOT examination and passed that and a test certificate was issued which recorded that at that time the mileage was 73,920 miles.

4. The claimant renewed the road traffic fund licence by purchase of a tax disc which was issued and stamped on 1^st August 2005 for 12 months, expiring on 31^st July 2006.

5. The claimant's car was damaged by the negligent driving of the defendants' employee on 23^rd March 2006 while it was parked unattended in Edgewarebury Lane in Harrow.

6. The claimant was not aware of the accident at the time and the police arranged for the damaged vehicle to be moved from the road.

7. The claimant went to solicitors on about 10^th April 2006 and the claim was notified to the defendants on 11^th April 2006 in respect of damage to the vehicle.

11. On 12^th April 2006 the claimant arranged for the car to be inspected by an automobile engineer, Roy L. Tubbs, who issued a report describing the state of the vehicle. He stated that by reference to Glass's Guide the value of the vehicle pre-accident was £1,565; that the costs of the repair would be £4,925, hence it followed that the vehicle was a constructive total loss.
12. Roy Tubbs recorded that the mileage at the time of his inspection was 83,077 miles, which would indicate that the car had been driven since the MOT test the previous April some 9,157 miles.
13. At all relevant times the claimant held a full driving licence.
14. On 24^th January 2007 the claimant was convicted in the Magistrates Court of an offence of using a motor vehicle on a road on 23^rd March 2006 without the insurance required by section 143 of the Road Traffic Act 1988. His licence was endorsed with 6 penalty point. He was not disqualified from driving. Although at first the evidence indicated he had also been fined some £60, in evidence the claimant said that he had not in fact been fined this sum because of his limited financial means, and his driving licence does not appear to record a fine of £60.
15. On 3^rd April 2006 the claimant entered into the first of four agreements with Direct Accident Management Limited. These agreements were described as rental agreements. The first of these agreements provided for Direct Accident to hire a vehicle to the defendant at the hire rate of £67.50 per day, which together with other expenses such as collision damage waiver, road tax and delivery charges, eventually produced a sum due to Direct Accident of £8,590.92 for 82 days. Three similar agreements were signed by the claimant with Direct Accident. The second on 27^th June of 2006 providing for a total hire charge of £8,492.25 for a further 85 days. The third on the 20^th September 2006 for a further 86 days at a total charge of £8,590.92. Finally, on 12^th December 2006 for a further 84 days producing total charges of £8,393.59. In all these four agreements cover the total period of 341 days at a total cost of £34,067.68. Each of the agreements were in common form and Clause 5 was to this effect: "Where the hire is consequent upon the hirer's own vehicle being unroadworthy as a result of a road accident, (1) the lessor will allow the hirer to defer payment of the hire charges until such time as the claim for damages has been concluded, irrespective of the outcome, against a party (hereinafter called the third party) and in any event the sum payable under this agreement should be paid within 11 months of the date of the agreement and in no more than three instalments." Then various other provisions were contained in a somewhat detailed agreement.
16. As at the date of the hearing in June 2008 the claimant has not paid any part of the charges due under any of the four rental agreements, nor does it appear that Direct Accident have made any demand or taken any steps to enforce payment under that clause, notwithstanding that the 11 months has clearly expired.
17. On about 24^th February 2007 the defendants paid to the claimant the sum of £1,250 by way of an interim payment on account of the capital value of the motor car (that is the pre-accident value.) The balance of this claim, a further sum of £315, was paid on 18^th February 2008. Those facts, as I say, were either admitted or not disputed, or in my judgment were clearly established by the evidence.
18. I now go on to the more controversial evidence.
19. The Evidence.

The claimant had made two written statements, on 15^th March 2007 and a second one on 4^th May 2007. He had also answered a number of extremely detailed requests for information posed by the defendants on 11^th September 2006, and again on 18^th March 2008. He had also been asked to admit facts relating to the insurance of the vehicle, which he had declined to admit.

20. The claimant gave oral evidence and was cross-examined. It is necessary to highlight certain parts of this evidence, but I will confine myself to the parts which are germane to the ex turpi causa point, although it was more extensive than the summary I am about to give.
21. In response to the defendants' questions on 11^th September 2006 and 18^th March 2008, which can be found in the bundle at pages 155 – 164 and 171 – 176, the claimant gave certain facts about himself. He stated that his date of birth was 3^rd January 1971; that he had lived in Daventry Street NW11 at the relevant period and that he worked at Dixons at their shop at 161 Station Road in Middlesex. The defendants calculated the distance from the claimant's home to his place of work was about 8.4 miles, that is a single journey one way.
22. On 11^th September 2006 in answer to a request for information concerning his motor insurance certificate he replied, and I quote: "I have not kept a copy of the insurance certificate." He said that the vehicle was parked on the road because he was in the course of selling it to a person he identified as Sean Ford of Edgewarebury Road, who appears to have been a work colleague of the claimant. His explanation for leaving it on the road was that he could park it at that position without incurring parking charges, which would have been applicable if he had parked it beside his own home.
23. He said that he was at work when the accident happened on 23^rd March 2006. The defendants calculate that the car was parked a comparatively short walking distance away from his place of work. They indicated that on the map, which I think was produced from the internet and was put in evidence.
24. On 11^th March 2008 the claimant stated that the car had been parked in Edgewarebury Road for about three to four weeks prior to the accident.
25. In answer to the question when he last held insurance for the vehicle he replied on 11^th March 2008: "I no longer have any details in this regard and cannot recall the date." In answer to a specific request to admit whether the vehicle was insured between 1^st April 2005 and 29^th March 2006 the claimant replied: "This is not admitted." He also declined to admit that he had knowingly driven the vehicle without insurance during the above period.
26. In his first witness statement dated 15^th March 2007, the claimant said that he was then 35 years of age, his date of birth being, as I have indicated, 1^st January 1971. Again he reiterated that the vehicle had been parked in Edgewarebury Lane as it was being sold to a work colleague. He said that the work colleague had informed him that the car had gone from the parked position at about 9.00 p.m. on the evening of 23^rd March 2006. It was not entirely clear whether this colleague was the same colleague who the claimant said was interested in purchasing the vehicle. I think on balance it probably was but it is not entirely clear.
27. The claimant contacted the police and was given details of the accident including the identity of the defendants' vehicle and also the whereabouts of the car.
28. In his witness statement he described entering into the credit hire agreements and he said that he needed the credit hire because he had used the vehicle for commuting to work, social and domestic purposes, and he claimed various expenses which he had incurred following the accident. In his second witness statement, dated 4^th May 2007, he merely gave further details of his out of pocket expenses.
29. In cross-examination the claimant stated that he had not driven the car on the day of the accident, but he had last driven the car about four to eight weeks before the accident. He said that he had had motor insurance in the 12 months preceding the accident, that had first been with Tesco but after Tesco cancelled the insurance he found another insurer by searching the internet. He said that he could not remember whether Tesco had cancelled his insurance or not and he was not aware that Tesco had refused to continue the insurance because of non-payment of the premiums. He insisted, however, that he did have insurance in February 2005 but was quite unable to produce any documentary evidence of this, nor was he able to identify in any way the name of the motor insurer. His explanation for this was that he had scanned the insurance documents into his computer but he was no longer able to retrieve the documents from his computer because it had crashed and he no longer had available the original insurance certificate which would necessarily have been issued no matter how he gained motor insurance.
30. He denied that he had driven the car to work on the day of 23^rd March 2007 and insisted it was parked in Edgewarebury Lane in connection with the proposed sale which he had already mentioned in answer to the request for information. He agreed that he was at work at the date of the accident.
31. He said that he had not used the vehicle before the accident as he did not wish to run up the mileage on the clock as this might reduce the sale value of the car. It was suggested to him this was a particularly unconvincing answer given that the car was about 8 years old and that it appeared that he had already driven some 9,000 miles during the last 12 months and it had over 80,000 miles on the clock at the time of the accident. He said that although he previously had used the car to commute to and from work on about five days a week before the accident, that is some time before the accident, he had had no need to do so immediately before the accident because he had the use of his girlfriend's car in that period and he decided not to use his own car in order to keep the mileage down.
32. There was very considerable cross-examination about the identity of the girlfriend and the use of various girlfriends' accounts for the purpose of receiving wages from his employer, Dixons. The claimant said that he originally had an account with NatWest but this was closed; that he was having problems in finding a bank and in saving much money because he was under legal liabilities to pay maintenance for his children. He said he had as many as seven children, not all by the same lady as I understand it.
33. It was suggested that he had been dishonest in the initial identification of his girlfriend and a lot of cross-examination was directed to the actual owner of the bank accounts. Let me say this about this cross-examination. These questions are primarily relevant, if at all, to the questions relating to the credit hire point. However, it is correct that they do have some relevance on general credibility. I do not propose at this stage to summarise the effect of this cross-examination, but I will refer to some parts of it at any rate later, particularly with regard to credibility, when I review counsels' submissions in this case.
34. Of more direct significance to the ex turpi point, he was questioned strongly on the basis that he must have misrepresented his position in relation to the availability of insurance when he renewed the road fund tax disc on 1^st August 2005. It was put to him that evidence obtained by the defendants from a comprehensive motor insurance database known as the MID, which I will return to in a moment, indicated that there was no record of him being insured at any material time following 15^th December 2004. It was also suggested to him that if he had managed to retain the Tesco motor insurance certificate, which of course he ought to have returned to Tesco on the cancellation of insurance, but if he had managed to retain that certificate, and on the basis the Tesco policy had run for 12 months, it was convenient that it would have expired at about the time of 1^st August 2004 when he obtained the renewal of the tax disc. It was put to him quite directly and bluntly that the probabilities were that he had knowingly produced an invalid insurance certificate on 1^st August 2005. It was put to him in very clear terms that he had, in effect, defrauded the authority issuing the road fund licence by relying on the defunct certificate. The claimant vigorously denied the suggestion and insisted that he was in a position to produce evidence of genuine insurance at the time the certificate was renewed. It was apparently renewed not over the internet or by telephone, but at a post office. Again he was totally unable to produce any documentary evidence of that insurance or even to identify the insurer who he said had provided it.
35. The remainder of the very extensive cross-examination was principally directed to the credit hire point and I will leave that to be considered at a later stage.
36. In re-examination the claimant said that he had had an insurance document when he renewed the tax disc, which was not from Tesco, but he could not remember the identity of the insurer.
37. Evidence was called on behalf of the claimant which was directed to the credit hire point. I will leave that for later consideration.
38. The defendants called a Miss Aileen Walker, who was a research director at Autofocus Limited, which appears to be an organisation which assists the motor insurance industry. Her primary evidence in her witness statement was directed to the credit hire point, but not in relation to the claimant's insurance at the material time. She made a witness statement dated 14^th March 2008 and gave oral evidence. As I have said, the witness statement was directed to the credit hire point, but in oral evidence-in-chief she proceeded to go beyond the contents of the witness statement by explaining the significance of the various enquiries which the defendants' solicitors had made through an organisation called the MID, that is the Motor Insurers' Database, which the defendants had obtained in the form of a series of pro forma written replies.
39. Mr. Nichol for the claimant objected that this evidence had not been foreshadowed in Miss Walker's witness statement and it partook of the nature of possibly expert evidence, certainly evidence of somebody who had more than ordinary experience in order to explain the basis of the reports of the MID.
40. Furthermore, he said, there was no evidence that Miss Walker was qualified to give the evidence. She had not been responsible for compiling the database, she merely referred to the product of the database, namely the various MID reports.
41. In my judgment Mr. Nichol's objections were well-founded. However, the MID reports had been included in the defendants' solicitors' documents and no objection had been taken to those or requiring proof of them within 7 days. Accordingly, the claimant is deemed to admit the authenticity of the document by reason of the CPR Part 31 and the note E1–005 at page 2377 of the current 2008 white book volume 1. That indicates that if a document is described in a notice produced on disclosure, and if the opposing party does not require proof or put the party to produce it to proof within 7 days of the disclosure the document is deemed to be authentic.
42. Further, although the intention to rely upon the contents of these documents as hearsay evidence had not been notified by the defendants as required by the Civil Evidence Act 1995 and the various rules of the CPR made thereunder, nonetheless it is the fact by the primary statute, these documents are evidence, admittedly hearsay, which are admissible under section 1 of the Civil Evidence Act 1995, even though the hearsay may be based upon hearsay, that is multiple hearsay. I had better read the relevant statutory provisions.
43. The basic provision is in section 1 and broadly speaking its effect is to abolish the common law exclusionary rule of hearsay evidence in civil proceedings. It is a very far-ranging statute. Section 1(1) says this: "In civil proceedings evidence shall not be excluded on the ground that it is hearsay. (2) In this Act (a) hearsay means a statement made otherwise than a person while giving oral evidence in the proceedings, which is tendered as evidence of the matter stated, and (b) references to hearsay include hearsay in whatever degree." Then there are various other statutory provisions enabling rules of court (which is now the CPR) requiring notices to be given by a party who wishes to rely on documentary hearsay evidence. There is quite an elaborate procedure and the rules make provision for the adverse party to require the maker of the statement to be called. However, there is a general saving in subsection (4) of section 2 in these terms: 2(4): "The failure to comply with subsection (1) or with rules under subsection (2)(b) does not affect the admissibility of the evidence but may be taken into account by the court (a) in considering the existence of its powers in respect of the course of proceedings in costs; (b) as a matter adversely affecting the weight to be given to the evidence in accordance with section 4." section 4 deals with circumstances where the court should have regard to that fact in dealing with hearsay it should exercise certain caution in how it approaches that evidence.
44. Furthermore, section 9 of the Act deals with the proof of records of businesses or public authorities. This is a long section, but basically it provides as follows: "A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof." Then there are provisions designed to authenticate the document requiring certification of the document in subsection (2) of section 9: "A document shall be taken to form part of the record of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong. For this purpose a document purporting to be a certificate signed by an officer of the business or public authority shall be deemed to have been duly given by such an officer and signed by him, and (b) a certificate shall be treated as signed by a person if it purports to bear a simile of his signature." Then it deal with various other matters. It defines records as being records in whatever form, and business includes any activity regularly carried on over a period of time, for profit or not, by anybody, whether corporate or by an individual, and so on.
45. Again, there is a saving clause in subsection (5) of section 9 in these terms: "The court may, having regard to the circumstances of the case, direct that all or any part of the above provisions of this section do not apply in relation to a particular document or record or description of documents or record." So notwithstanding the formal procedures, both in relation to hearsay under section 1, and proof of documentary business records under section 9, the court has an ultimate discretion to dispense with the procedures if they have not been followed. That is not to say that litigants should habitually rely on the good nature of the court that it will exercise its discretion under those exceptions.
46. So in my judgment the following is the result. The documents are admissible as hearsay, even multiple hearsay, under section 1 of the Act. They also appear to me to be records in the course of a business under section 9. The documents are manifestly relevant to an important issue in this case. Mrs Walker stated that the database is compiled pursuant to a statutory scheme whereby motor insurers carrying on business within the United Kingdom are required to notify the database of any change of insurance in respect of any identified vehicle within 7 days. That does not appear from any document that I have seen. It does appear, however, in a memorandum which was issued in connection with another piece of legislation, which I will refer to in due course, that this database has received some form of statutory or quasi-statutory recognition. That is the memorandum in relation to powers of seizure of vehicles which have been driven without insurance, which does in fact refer to the database. I will deal with that later.
47. At the end of the day, as I understand Mr. Nichol's position, he did not insist, as I gave him the opportunity of doing, on an adjournment to enable Miss Walker to file a supplemental statement dealing with whatever she was in a position to deal with as a result of her own direct knowledge or as a matter of hearsay, nor did I understand that he was seeking an adjournment to consider the matter generally. I hope I am not wrong in that but that is my recollection. He did object, and he did point out the deficiencies in Miss Walker's knowledge in relation to this evidence.
48. I also take judicial notice of the fact that there is clearly some database immediately available to at least the DVLA authorities because one can renew one's road tax disc over the internet or the telephone without identifying the relevant insurance to them, and they have a means where they seem to be able to pick it up in a matter of seconds. I can only assume this is by the very database we are talking about or something at least which is substantially similar.
49. As I say, this evidence in my view is potentially important evidence. I also bear in mind that in the circumstances of this case the claimant, although he says in general terms he did have insurance following the termination of the Tesco insurance policy on 15^th December 2004, was quite unable to give any positive identification of the insurer. That is not without significance in my judgment. His answers in relation to that, as I will indicate in due course, were evasive and even more than evasive.
50. In all the circumstances, in order to do justice to this case, it is necessary that I do have regard to this material and that I do accept it as evidence of the facts which it purports to state.
51. Let me say this, I think it is most unfortunate that the defendants had all the resources of the motor insurance industry available to them, have not followed the procedure required in relation to an intention to rely upon hearsay evidence, or to complete the procedure to certify the validity and reliability of the document as a business record under section 9 of the Act. That I hope is a failure which if this material is resorted to in the future will be corrected. It does seem that it should have been possible to have called a witness who could explain the database or possibly put in a witness statement to explain it or at the very least a certificate which, as the Act provides, is virtually self-proving.
52. I do bear in mind the criticisms of Mr. Nichol that the evidence is second-hand and even third-hand hearsay; that no witness has been called with direct knowledge of the compilation or the operation of the database; that Miss Walker is only familiar with the end product; and for these reasons I direct myself that I must exercise some caution in considering that evidence. As I say, against that is the fact that the claimant effectively has not chosen to put forward a positive case demonstrating that he did have the relevant insurance at the time.
53. The question of whether there was operative insurance has long been an issue on the pleadings and, if no later, it was very clearly spelt out in the defendants' counter schedule of loss which was dated 1^st June 2006 (see pages 239-240 in the bundle).
54. In all those circumstances I am going to admit this material and in my judgment it does have evidential worth. I should say this, that Miss Walker started to say at one stage what she was told was the degree of confidence in percentage terms that could be placed on this data. I have not recorded that in my judgment and I accept Mr. Nichol's submission that she really is in no position to give that evidence, so I do not propose to mention the degree of confidence that she said the MIB placed on the material. That is self-serving hearsay by the people who compiled the material and I disregard it. Notwithstanding that, I do intend to act, insofar as it seems to me credible and relevant, on this evidence.
55. I now turn to the effect of this evidence. The information provided by the MID consists of a series of answers to enquiries raised by the defendants' solicitors as to the state of the claimant's insurance in respect of his identified motor car on a number of what I might call individual spot dates as opposed to a continuous period or periods beginning and ending with a date.
56. The form of the information can be taken from one of the examples at page 229 in the bundle. It shows that the enquiry was made by Berrymans Lace Mawer (who are the defendants' solicitors) and they have various references for the solicitors. The enquiry is in respect of a vehicle with an index registration mark R974VEL (that of course is the claimant's vehicle). The enquiry relates to the spot date described as "date of incident" on 29^th December 2004. It appears that the MIB carried out that search on 29^th January 2008. They give it a reference number and it says, I quote: "Record of insurance found on MID" and the letter "N" appears. There is then this rubric on the certificate, or the document: "This response provides the basic information as to whether any details of insurance appear on the MID and hence whether a claim should be submitted to the MIB and advantage taken of MIB's free legal expenses scheme. If the answer is 'N' then a claim should be submitted to the MIB using the on-line claim submission facility or by downloading a claim form. If the answer is 'Y' then, whilst this is not the purpose of the service, you can request details of the insurer, but at the present this can only be provided by email."
57. No less than 18 spot enquiries are made in respect of 18 dates starting on 1^st August 2004, the last date being 29^th March 2006. In respect of all of those dates the return indicated that there was no insurance. Of particular interest are the dates of 29^th July 2005 and 29^th August 2005, those of course spanning the period when the tax disc was renewed on 1^st August 2005. Although no spot enquiry is actually made for 1^st August 2005, there was no insurance on 29^th July 2005, and no insurance on 29^th August 2005. It seems improbable that insurance could be taken out for a few days which happened to cover 1^st August but had already terminated by 29^th August. I regard that as evidence that there was no insurance in force available to the claimant in respect of this motor car on 1^st August 2005 when the tax disc was apparently renewed.
58. I now turn to my findings of fact. The principal issue of fact in relation to the legality point is whether a sufficiently persuasive foundation of fact can be laid to permit a rational conclusion that the claimant would have continued to use his car on the public roads without the statutory insurance as required by the Road Traffic Act, for a period of at least 341 days following 23^rd March 2006, during which he says that his car was not available and in respect of which he seeks damages based on the credit hire rates for being deprived of the use of his vehicle. The claim is not in relation to the capital value of the vehicle, that has been paid. Although at one stage Mr. Snarr for the defendants sought to argue that claim was also barred by reason of the ex turpi doctrine, at the end of the day he did not persist in that, in my view wisely.
59. The significance of this question arises from the defendants' submission that the claimant's loss of use is a claim in respect of a period of time when his intended use of the vehicle would have been without insurance, accordingly criminal, antisocial and unlawful, and the law should not compensate for this loss of use, of an unlawful use, by reason of public policy as expressed in the maxim ex turpi causa non oritur actio and I should say that this seems to have survived the general prohibition against resort to dead languages in these courts in the 21^st century. I think one of the judges in one of the authorities did attempt a more user friendly version but for the sake of brevity and understanding I am going to use the Latin.
60. This submission by the defendants was founded principally on a modification of the general principle as formulated by the majority of the Court of Appeal, and particularly Clarke LJ who delivered the majority judgment in the case of Hewison v Meridian Shipping. The modification according to Clarke LJ was that instead of causa the maxim should in this context be ex turpi causa non oritur damnum where damnum is the loss which would have been recovered but for the relevant illegal or immoral act. I was given a transcript of that case and the notation is [2002] EWCA Civ 1821, that particular principle was identified at paragraph 28 of Clarke LJ's judgment.
61. I will deal in a little more detail with the law. The lynchpin of the defendants' case is the decision in Hewison itself. This was a decision of the Court of Appeal consisting of Ward LJ, Tuckey LJ and Clarke LJ in December 2002. The decision upon which the defendant relies was a decision of a majority of the court, namely Clarke LJ and Tuckey LJ, Ward LJ dissented.
62. The facts of the case were far removed from the facts of our case. The claimant was employed as a crane operator on a seagoing cable vessel. He was injured during the course of his employment and was unable to continue his former work, and the principal claim with which we are concerned included a substantial claim for loss of future earnings as a crane operator from the date of the accident to his normal retiring date.
63. On the face of it the claim seemed a straightforward claim and the negligence, as I understand it, was admitted – if it was not admitted it was certainly established. The claimant, however, had suffered from epilepsy for some considerable period of time. He had controlled this by medication. The importance of this fact is that this condition would have prevented him from obtaining employment at sea, including any employment as a crane operator on a seagoing vessel. He had made written representations to his employer to the effect that he was not taking any medication and did not suffer from fits, fainting or giddiness. He had been engaged and had continued to work regularly until the date of the accident without any problem occurring. However, he had admitted that he knew perfectly well that his epilepsy would have prevented him obtaining employment as a seafarer and that he had deliberately concealed this in order to obtain and keep his employment.
64. The trial judge, Moreland J, had rejected his claim for future loss of earnings by reason of the ex turpi doctrine. In the Court of Appeal the leading majority judgment was delivered by Clarke LJ. During the course of the judgment he reviewed a number of authorities and he accepted that the claimant's claim for loss of future earnings could only be denied if there was an effective application of the principal ex turpi causa as a matter of public policy.
65. In the Court of Appeal the claimant's case rested largely on the submission that public policy only required the dismissal of the claim, particularly by a hard working claimant who had worked without incident for some time, if it could be said that it would affront the conscience of the public. In other words, if the public would say with some disapproval: "This claim should never be allowed." and arguments were developed that in all the circumstances of this case the claim of a hard-working family man, who in fact had successfully controlled his condition of epilepsy, for which he was in no way responsible personally (although he had concealed it) would not have aroused the public ire. That principle was in fact rejected, indeed by all the court, including the dissent. The true principle, according to Clarke LJ was that which was identified by Lord Mansfield in Holman v Johnson as long ago as 1775, which was reported in [1775] 1 Cowp 341. I quote Lord Mansfield: "No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act." That was said in the context of a contractual claim but the principle has been applied widely and is one of general application, including the possibility of application in tort claims, although I think it is fair to say most of the reported authorities arise out of contract. The court accepted that the principle is a general one and could be applied in relation to any cause of action given that the facts justified it.
66. Clarke LJ encapsulated, as I read it, the majority reasoning at paragraphs 26 – 32 of his judgment. I should say during the course of his judgment he relied on another case, I was not referred to the report, including certain passages in a case called Hunter v Butler [1996] RTR 396. In that particular case the illegal conduct upon which the claim for loss was based was a claim by a widow for dependency by reason of the fact of the tortious death of her husband, and it appeared in fact that part of the husband's earnings had consisted of taking employed work, moonlighting it was called, at a time when he was also claiming social insurance benefits, and the effect of that in the opinion of the Court of Appeal, was to reduce the widow's dependency claim to the extent that it was based upon earnings received by deceit of the social benefit authorities. As I say, that case was referred to, among other cases, by Clarke LJ.
67. I will take up Clarke LJ's own formulation at paragraph 26 of the transcript. He is first of all dealing with the argument that the public outrage as a conscience is the true basis of the doctrine, which he rejects after quoting a number of passages from various authorities. "As can be seen from those passages the courts have not adopted the suggestion that in a case where the maxim ex turpi causa non oritur actio applies the correct approach is to identify whether the public conscience would be affronted. We have been shown no case in which the courts have adopted such an approach to cases of this kind. In these circumstances I, for my part, do not think it is appropriate to adopt it."
68. Paragraph 27: "The correct principle seems to me to be substantially the same as that identified by Beldam LJ as being applicable to cases where the maxim ex turpi causa non oritur actio applies. It is common ground that the maxim itself does not apply here because it is correctly agreed that there is no principle of public policy which prevents the appellant from pursuing his cause of action for negligence or breach of duty against respondents. The question is not whether he can recover at all, but whether he is debarred from recovering part of his alleged loss."
69. Paragraph 28: "However, as I see it, the principle is closely related. It is common ground that there are cases in which public policy will prevent a claimant from recovering the whole of his damage which, but for the rule of public policy, he would otherwise have recovered. The principle is stated as a variation of the maxim so that it reads ex turpi causa non oritur damnum where the damnum is the loss which would have been recovered but for the relevant illegal or immoral act. A classic example is the principle that a person who makes his living from burglary cannot have damages assessed on the basis of what he would have earned from burglary but for the defendant's negligence."
70. Paragraph 29: "To my mind the authorities support that approach. They seem to me to support the proposition that where a claimant has to rely upon his or her own unlawful act in order to establish the whole of his or her claim, the claim will fail either wholly or in part. In the present context the principle can be seen from the decision of this court in Hunter v Butler [1996] RTR 396. Although it has to be said that that case does give rise to some difficulties of interpretation."
71. Paragraph 30: "In that case the plaintiff was a widow who was claiming as her husband's dependent under section 3 of the Fatal Accidents Act 1976 as substituted by section 3(1) of the Administration of Justice Act 1982. Her husband died in a motor accident which was caused by the defendant's negligence. In assessing her dependency the plaintiff relied in part on supplementary benefit which her husband had fraudulently claimed in his lifetime, and in part upon undeclared wages which had been earned from moonlighting, and which the judge held he would have continued to earn but not to disclose had he lived. This court considered whether the plaintiff's dependency would properly include the earnings which the husband would have received from moonlighting. The submission that he could was rejected, as was the reliance upon the supplementary benefit which the husband would have received."
72. I pause there and observe as follows. The interesting facts here are, firstly, Clarke LJ has modified the principle so as not to deprive the plaintiff of his whole cause of action but to focus the principle on a particular head of damage, which is precisely the same as in our case. Certainly in view of the stance now taken by the defendants' counsel, which I have already indicated I think was the right one, the claimant is not deprived from recovering the capital value of his motor car or, in principle, out of pocket expenses in connection with the retrieval of the motor vehicle. Likewise, if he had been in the car and suffered personal injury, in my judgment he would not have been precluded from recovering for personal injury. What he is precluded from recovering is the loss of use of the vehicle, which is an entirely distinct and discrete head of damage, on the basis that any use of the vehicle during the period in respect of which the claim is made would have been an unlawful use.
73. The other interesting fact is the reference to Hunter v Butler, a case where the judge in fact made the same predictions as to future conduct as the defendant invites me to make in this case. I read again from paragraph 30 in Clarke LJ's judgement referring to Hunter v Butler: "The plaintiff relied in part on supplementary benefit which her husband had fraudulently claimed in his lifetime and in part upon undeclared wages he had earned from moonlighting…" this is the critical finding "…and which the judge held he would have continued to earn but not to disclose had he lived." In my judgment that is similar to the way in which the defendants seek to apply the principle in this case.
74. I continue the quotation from Clarke LJ's judgment, taking it up at paragraph 31, and he is again referring to Hunter v Butler, and there is apparently some difficulty in determining the precise ratio of Waite LJ and Hobhouse LJ as he then was. 31: "Both Waite and Hobhouse LJs gave reasoned judgment and Hurst LJ agreed with both. Waite LJ considered loss of the supplementary benefits separately from the case based upon the proceeds from moonlighting. As I read his judgment he rejected the claim for loss of supplementary benefits on the basis that the plaintiff was, as he put it at page 402K: 'In no sense dependent on the deceased.' He added: 'She, no less than he, was dependent in that regard upon the State.' As to moonlighting, Waite LJ rejected the claim on two grounds. The first was that the assumption on which it was based, which we are not concerned with, was false. The second was based on public policy. Waite LJ said at page 403E – H: 'It offends public policy in two respects. First it assumes that someone who had committed fraud in the past would continue to do so in future ignoring the possibilities of repentance or detection.'" I do not need to read the rest of that quote.
75. Clarke LJ continued: "It appears to me that Waite LJ took the view that the proceeds of moonlighting were not wages he honestly earned or income honestly received. Hobhouse LJ said that he agreed with Waite LJ that the appeal should be allowed to the extent proposed. He identified the second issue as being whether the plaintiff was entitled to allege and claim damage on the basis that the deceased would have continued his previous practice (to which she was privy) of fraudulently claiming benefit without disclosing that he was earning." Then he quotes from Hobhouse LJ.
76. I pick up the second part of the quotation in paragraph 32 of Clarke LJ's judgment in these words: "If the plaintiff comes to court and asserts as part of her case that she would have committed criminal acts and bases her claim upon such an assertion, she cannot recover in a court of law on that basis. Here she has claimed loss of dependency on the basis that the deceased would have paid sums to her which he had, to her knowledge, obtained fraudulently from the benefit office." I read on: "This is a stronger case than Burns v Edmond where Crighton LJ held that the innocent wife of a robber could not claim by reference to the loss of his 'earnings' Nor does it raise any of the points discussed in Kemp & Kemp pp 25006 – 7 when either no criminal act has been involved or the plaintiff has not been concerned in any way with the illegality: see La Bagge v Buses [1958] NZLR 630, 647. Whether and, if at all, to what extent the opinion expressed in Kemp & Kemp can be supported will have to be considered in a case which raises such points."
77. That again has a number of interesting points. Again both Waite LJ and Hobhouse LJ proceeded on the basis that provided the facts are appropriate and sufficiently strong a confident prediction as to the future conduct may be made from the past conduct. Obviously it is a matter of predicting the future, obviously it is a matter of circumstantial evidence, but provided the evidence is sufficiently cogent there is clearly no objection in law from a court concluding that if criminal behaviour has been indulged in in the past it is likely to be continued into the future.
78. There is also reference to a New Zealand case La Bagge v Buses with which I taxed Mr. Snarr at some length during the course of his argument – I need not really deal with that case here because it is not an authority which is binding on me and it was distinguished by Clarke LJ in his judgment, but it does at least theoretically seem to indicate a different result from Hewison itself. In that case, again I believe it was a dependency claim, the breadwinner husband of the claimant was an owner/driver and there was a regulation in New Zealand which required drivers to take a day of rest every 7^th day. This was not from any religious conviction as I understand it in the New Zealand legislature, but was clearly designed in the interests of road safety with a view to preventing drivers driving long hours and becoming tired. This country has similar sorts of legislation seeking to protect or enhance that policy.
79. The interesting thing in that case was that the dependency claim was not reduced by the fact that it was based on a full 7 days earnings as opposed to what it might thought to be argued was a lawful 6 days earning. The matter was determined by a jury. I do not propose to go into that case further than I have already said. It is interesting that it was mentioned in Hunter v Butler and it was also, of course, as I have indicated, before the court in Hewison. Indeed in his dissenting judgment Waite LJ placed considerable weight upon that decision. He also, incidentally, cast doubt on Clarke LJ's observation that the claim was equivalent to a burglar recovering for his ill-gotten gains, pointing out that the burglar was not working, he was stealing them. But be that as it may, and interesting arguments may be developed at a higher level possibly, I am bound by the majority decision in Hewison and I loyally intend to apply it provided it is appropriate to do so upon the facts of this case.
80. That decision, so far as the defendants are concerned, is, as I have said, the lynchpin and I think it is not necessary for me to refer to other authorities, even though other authorities were cited.
81. Mr. Snarr for the defendants submits that if the court is satisfied that the claimant would have continued to drive his car without insurance over the period in respect of which he claims damages for loss of use, quantified by reference to the credit hire charges, his claim is in respect of a future dishonest or unlawful use and should be dismissed pursuant to the above principles.
82. As I have already stated above, this requires the court to make a finding of fact as to the probable future course of the claimant's voluntary action. To that extent, of course, it differs from the facts in Hewison, because the unfortunate Mr. Hewison could do nothing about his medical condition. He had epilepsy unhappily, and even though he could control it with medication it was a complete bar to his obtaining employment in his chosen profession. He was not in any way responsible, morally or otherwise for his unfortunate condition, although he was, of course, responsible for seeking to conceal it from his employer so that he would get employment from which his condition debarred him.
83. However, Hunter v Butler was a case where the husband, upon whose work the dependency claim was being made, did have a choice. He did not have to go on moonlighting in the future; he did not have to go on dishonestly claiming benefits; that was his decision, and therefore the facts, it might be thought, are rather nearer (although by no means similar in circumstantial matters) to the facts of this case, but they do demonstrate that in a case where the claimant is not inevitably committed to a particular course of action which is beyond his control but depends upon his voluntary choice, there can, if appropriate, be grounds for applying the principle.
84. Then turning to the argument on the facts in a bit more detail, because the application of any illegality principle such as ex turpi causa is very fact dependent or specific in my judgment. The principle is a wide and broad principle, which is easy to state but presents much more difficulty in application. It has been described by very learned judges as an unruly horse which will take you who knows where once you get astride it. It is important, therefore, that the judge who is being asked to apply the principle endeavours to ensure that a proper control is kept over this beast.
85. The first point is the burden of proof. There was some debate between counsel as to how I should approach the burden of proof. This is a fact-finding exercise. It is a predictive exercise as to future based on past conduct, and the burden of proof could in principle, in theory at any rate, prove quite significant. I am going to approach this on the basis that the burden of proof to establish that the claimant would have continued an illegal criminal activity rests fairly and squarely on he who alleges it, and that is the defendants.
86. I now turn to the standard of proof. The standard of proof is, of course, in all civil cases proof on a balance of probability. However, I accept the submission from Mr. Nichol, without in any way modifying that legal standard, that in practice the evidence required to discharge that standard will vary according to the facts and according to the object of proof. It is far easier to establish that a comparatively innocent and every day act will occur than to establish, particularly in regard to criminal conduct, that based on past actions it will be continued into the future, indeed for a considerable period of time. This does not mean that the standard that is appropriate is that of the criminal standard, to be sure beyond a reasonable doubt but, as a matter of justice and practicality, more cogent evidence would be needed to discharge the civil burden, even on a balance of probabilities, in circumstances of this sort. Particularly in a case where, of necessity, the defendants are unable to obtain any direct admission or any direct evidence of the claimant's intentions, and are required to establish this by forensic tools, such as inherent probabilities and the inherent improbabilities of such evidence as the defendant has given. It is essentially an exercise in circumstantial evidence.
87. Circumstantial evidence can, if it is strong enough, be quite sufficient even to establish guilt on a criminal standard, and even on a rather heightened (if that is the right way of describing it) of a more strictly applied civil standard.
88. In this context Mr. Nichol made a number of submissions. He pointed out that the act of driving a vehicle on the public highway is not an inherently illegal activity any more than obtaining a social security benefit is an inherently illegal activity. It only becomes unlawful if it is done without acquiring the necessary Road Traffic Act insurance.
89. He emphasises that what is being suggested is not only past but future criminal conduct and that a driver would continue to engage in unlawful activity, as I have said, for a considerable period of time in this case. He emphasises that there was direct evidence given on oath by the claimant, who asserted (admittedly without particularity) that he did have insurance at some time between the ending of the Tesco policy in December 2004 and the date of the accident, although he did concede, as it so happened, that at the time of the accident there was in fact no insurance in force. There was an explanation given by the claimant of this, which I will come to in due course. I have not already mentioned it, but he gave it in evidence.
90. A court, he said, should hesitate long and hard before forming a conclusion that a defendant would voluntarily continue future criminal conduct, particularly when he was not an inveterate driver without insurance. The Tesco policy itself demonstrated that at one time at any rate he had been content to take out insurance. It appears he probably lost it because of his financial circumstances, being unable to keep up the premium payment.
91. He further pointed out that this was a driver who had obtained a proper MOT certificate. He was not a driver who was reckless as to all the requirements of the law concerning the driving of vehicles. He had also obtained an appropriate road fund licence at the time when his other licence had expired.
92. It is against that background that I have to consider the evidence. There is no doubt these are weighty matters and I do bear them very much in mind in approaching the critical issue of fact as to the probabilities of the defendant continuing to drive without insurance for the period which I have indicated.
93. Mr. Snarr developed, during the course of both his opening and his closing submissions, a series of propositions. I hope that I am summarising them broadly accurately as follows. He said, firstly, there were considerable improbabilities about the claimant's own account. The ostensible reason he gave for leaving the car on the road on 23^rd March 2006 was itself very improbable. Although he had identified the potential purchaser in his answers to the request for further information, Mr. Ford, nonetheless he gave no address for Mr. Ford other than that he was resident on Edgewarebury Lane. He gave no details of how far the negotiations for the suggested sale had proceeded. He gave no details about whether a price had been agreed, or what was being negotiated in relation to the price or the parameters of the price. His evidence that the car had been left for a period of four to eight weeks, which was his oral evidence, in anticipation of a sale of an 8 year old second-hand motor car with 80,000 odd miles on the clock, was improbable in the extreme. He suggested this was a desperate ploy because of things that he had said to the police in connection with the criminal prosecution, where it appears that he had told the police that he had left the car on the road in anticipation of sale and he believed that if the car was properly taxed then it was not a requirement to have road traffic insurance if he was not actually driving it. This he said was manifestly devised to try to mitigate the offence and reduce its seriousness.
94. Furthermore, as I mentioned earlier on, he gave a number of unsatisfactory answers which, so far as materiality is concerned, are probably more directly related to the credit hire point in relation to the identification of his girlfriend, suggesting that it was one lady at one time, a Miss Bedodo(?), and suggesting at another time it was Miss Lily Brikoray, and this showed a distinct inclination not to tell the truth.
95. The second point he made is as follows. He said the car had been driven about 9,000 miles in the 12 month period between the MOT certificate of 1^st April 2005 and the claimant's own accident report of 1^st April 2006. That suggested regular commuter use and regular social and domestic requirements. The claimant had a number of children, as he himself said in his evidence, and he required the car to visit them. He had also indicated it was very likely it had been used on a regular commuting basis, the one way trip being some 8½ miles or thereabouts.
96. Thirdly, the claimant himself relied upon his own lack of means as justification for entering into the credit hire agreement. His net weekly earnings after deduction of income tax, national insurance and various payments imposed by the Child Support Agency for his children, was only £1,101.32 according to the evidence, which he had had paid into one or other of his girlfriends' bank accounts because his own bank NatWest were not happy to keep him on as a customer. That would suggest a serious lack of means and saving on insurance premium might be one regular and easily identifiable saving.
97. Fourthly, the explanation given by Tesco for cancelling his insurance on the 12^th December 2004 was non-payment of the premium, and that itself will have demonstrated that he was hard-pressed even to meet the Tesco premium. There is no evidence of what it was, but I would assume that it was not a top of the market premium. As I say, there is no evidence of what it was.
98. Fifthly, he had been deliberately evasive in refusing to answer direct questions as to the state of his own insurance and refusing to produce any relevant documentation.
99. Sixthly, his answers to requests for information in relation to insurance was that on 11^th September 2006 he said that he had lost the motor insurance certificate, although he still had available the MOT certificate and the tax disc which had apparently been returned to him by the police after the car was written off, or possibly the motor engineer, I am not sure. He said it was remarkable that those two documents were retained but not the far more significant motor insurance certificate. Again, he said the explanation that he did not believe he required insurance for merely leaving it on the road provided it had a valid tax disc showed at least a lack of appreciation of his duties under the Road Traffic Act, and it was suggested that a man of the claimant's obvious intelligence and experience could really not have been so naïve as to believe that. The story was, in other words, a specious device to mitigate the undoubted fact that he had committed a road traffic offence involving insurance. Again he reiterated (he said it more than once) the inability to identify the insurance or produce any insurance certificate.
100. Eighthly, in this connection it was pointed out that the accident happened on 23^rd March 2006, that only a week or so later, 10^th April 2006, the claimant had already contacted solicitors – I think that is two or three weeks after the accident – and indeed had advanced the claim the very next day on 11^th April 2006. He said it was quite unbelievable that he could have lost any insurance certificate in that time, though it is fair to say the claimant says that he did not have insurance for that time.
101. The evidence about the computer crash and the fact that he appeared to be prepared to rely on a scanned document, a serious document, which he could be required to produce at any time by a constable in uniform under the Road Traffic Act, was just improbable and in the realms of fantasy. He did not even deign to identify exactly how or when the computer crash occurred, and it was unclear whether his case was that he had retained the certificate even after he said that he had scanned it into the computer.
102. Mr. Snarr said the evidence from the MID was compelling and established that he had no motor insurance on 18 separate dates between 1^st August 2004 and 29^th March 2006, including the critical dates of 29^th July 2005 to 29^th August 2005, which covered the period when he had renewed the tax disc. This led, he said, to the inevitable conclusion that he had used subterfuge and misrepresentation to obtain the renewal of the tax disc. The most likely explanation being that he had managed to retain the defunct Tesco insurance certificate notwithstanding Tesco's cancellation of the policy, and had used that document dishonestly and fraudulently in order to procure a new tax disc. If that submission were correct, said Mr. Snarr, it was extremely damning to the claimant because it showed a total dishonest disregard for the provisions of the Road Traffic Act, and indeed a tendency to more general criminal conduct beyond Road Traffic offences, involving deceit and deception.
103. Let me say this, I hope I have summarised most of the points, many of these points are strong even when taken in isolation. In my judgment cumulatively they present a persuasive and, indeed, formidable case in support of the defendants' primary contention on the claimant's lack of insurance and the likelihood of that continuing into the future beyond the accident if events had not intervened, is a very strong one. Particularly if I am satisfied that the allegations of deviousness and dishonesty in relation to the purported spurious sale, (as the defendants would have it); what they say was a dishonest obtaining of the road tax disc, and the improbable and incredible explanations of leaving the car for four to eight weeks on an open road without any attention because of a prospective sale, and even more so the imaginative invention of the computer failure to account for the lack of any documentation.
104. As against these points Mr. Nichol reprised upon matters which I have already mentioned briefly above. He relied strongly upon the renewal of the tax disc in August of 2005. He said that itself was prima facie evidence that the claimant must have had some method of proof to satisfy the authorities issuing that disc that he had current insurance. He said the defendants' allegation of fraud in this connection was in fact really twisting the obvious conclusion one should draw from the issue of the tax disc to invent an unbelievable case of fraud and dishonesty, whereas in truth the tax disc itself suggested precisely the opposite and supported the claimant's case that he had insurance at that period.
105. He said that the evidence from the MID report was not complete. It did not cover continuous periods of time but only identified spot dates over a longer period. It was hearsay upon hearsay without any direct evidence as to how the data had been compiled or as to its reliability. I have already said that I do not take account of an answer from Miss Walker who sought to establish a degree of confidence in that data for reasons I have already indicated. He said Miss Walker was really in no position to give any worthwhile evidence about the database at all. She was not involved in its production and she was merely a customer of the end product and could not say whether it was good, bad or indifferent.
106. I accept there is weight in some of these criticisms and I have already indicated it. I think it would have been better, indeed much better, if the defendants had taken it upon themselves to establish the provenance, reliability and the manner of compilation of that database in more detail. But for the reasons I have already indicated, I am not prepared to reject the evidence of the database, and I have already said it contrasts strongly with the claimant's position that effectively he could present no positive case other than generalised, unparticularised, statements that he had insurance from the internet.
107. Mr. Nichol himself was forced to concede in his final submissions that the claimant's own account of how he had lost the details of insurance when he had scanned them into the computer was somewhat less than compelling. He suggested, however, that was not the main point of his evidence.
108. He said notwithstanding the claimant's undoubted financial difficulties, which were heavily relied upon in the context of the credit hire claim, he did not seem to be a man who was prepared to behave in a random and cavalier fashion and ignore the requirements of lawful driving. He was not a man who had continuously driven without insurance. At the very least he had had it up to December 2004 and he had taken steps to obtain the MOT examination certificate and, indeed, the renewed tax disc.
109. I have given careful consideration to the submissions made on behalf of the claimant and the submissions made on behalf of the defendants. I have taken into account that although the burden or proof rests upon the defendants, it is a civil standard, but given the serious nature of what is alleged to be not only past criminal conduct but a future determination to pursue a criminal course of action, that one must be very cautious before drawing any firm conclusions from the evidence.
110. I will now give my assessment of the claimant as a witness. It was apparent to me that while he was giving evidence he was a very intelligent man and self-possessed and, as his counsel brought out in the context of the hire credit agreement, he would not be unfamiliar with dealing with formal documentation by reason of his management at the retail outlet Dixons, which as we all know often sells goods on extended credit terms.
111. I also note, however, that at one stage when he required a document, I believe it was a banking document, he looked to his file contained in a document case and he produced the document in a matter of moments. The impression I had, admittedly it is an impressionistic one, was that he had a well organised set of documents in front of him in that case, which is rather contrary to his casual statement in relation to the Road Traffic Act insurance documentation. I think it is remarkable, as Mr. Snarr submitted, that although he had kept the MOT certificate and, indeed, the now redundant tax disc, he did not have the rather critical document, knowing from an early stage what the issues were in this case.
112. Notwithstanding the points made by Mr. Nichol, I believe the circumstantial case as set out in the various points which I have already referred to as advanced by Mr. Nichol, together with my impression, which I have just indicated, of the claimant as a witness, persuade me to say that I am satisfied upon a high balance of probabilities and taking into account all the difficulties of the case, that the claimant has deliberately set out to mislead the court about his lack of historical insurance. I reject his evidence that he had any form of insurance following the cancellation of the Tesco policy on 15^th December 2004. I am satisfied on a high balance of probability that he did not have such insurance.
113. I am also satisfied to that standard that his account of the intended sale of the car is a spurious account. It does not fit with the facts. It does not fit with leaving the car for up to eight weeks, as he said in his oral evidence, on the road. A deal of that nature could be concluded more readily, and although he said he did not need the car because he had the use of his girlfriend's car, I nonetheless think that that particular explanation almost certainly arose out of need to present a mitigating account to the police when they were making enquiries in connection with the criminal proceedings.
114. I have mentioned more than once the complete inadequacy and failure to identify any insurer or produce any relevant documentation.
115. It follows that in the light of those findings I am satisfied on what I have described as a high balance of probability that he had driven his motor car without the compulsory third party insurance for a considerable period of time, something of the order of 16 months as from December 2004 to the date of the accident in March 2006, which was a criminal offence contrary to section 143 of the Road Traffic Act 1998.
116. Accordingly, from his general behaviour and what I can only regard as a devious attempt to explain it away, I am satisfied, again having in mind the difficulties of proof of future conduct on circumstantial evidence in a case where the defendants have not produced any witness to directly contradict the claimant, it is more likely than not to a high standard of probability that this conduct would have continued unless some event had intervened, such as the accident in this particular case, or possibly some other event that caused the lack of insurance to be discovered.
117. I find the primary question of fact in relation to the illegality point in favour of the defendants.
118. I must now decide whether in the light of all the facts and circumstances the ex turpi causa principle is applicable to deny the claim in respect of the head of damage for compensation for loss of use of the claimant's car.
119. As I have already mentioned, at first Mr. Snarr sought to argue that the doctrine extended to deny any remedy to the claimant, even in respect of the loss of capital value of the car or possible personal injuries and out of pocket expenses. At the end of the day, however, in his final submissions he did not pursue what I regard as an extreme position. I do not think he formally conceded that it might not be applicable but he took a forensically sensible course that he was not going to persist in it, possibly in the light of observations from the judge, or possibly because he saw the light himself, I know not.
120. However, the principle identified and refined in Hewison is, in principle, applicable to the facts of this case for the reasons which I have already sought to identify. The question is whether principle applies upon the general circumstances of the case. The application of the principle is not one of discretion, as at one time argued, but it is undoubtedly fact specific, i.e. whether the ex turpi causa doctrine requires this particular head of claim to be denied to the claimant. Mr. Nichol submitted that it should not. This was not the most serious of offences, it appears that the claimant had not even been fined because of his lack of means. Admittedly he received six penalty points, but he had not been disqualified for any period. He said in order for the doctrine to apply the facts must be inextricably bound up with the primary facts which constituted liability under the operative tort, namely negligence, and even then the conduct of the claimant said to deny what otherwise he would certainly be entitled to recover must be extremely reprehensible and worthy of condemnation by the court.
121. He pointed out that at the first level the claimant's conduct in not having insurance was in no way causative of the negligent driving which caused the defendants' employee to drive into the vehicle. There has been no suggestion that the vehicle was in any way improperly or dangerously parked.
122. He referred me to a number of authorities, which he said illustrated the principle, and were of assistance in deciding the limits of its application. There were three in particular he asked me to read various passages from, and I loyally read them. One of them is Pitis v Hunt [1990] 3 WLR 546, that was a decision of the court of appeal and a transcript was provided to me. I was particularly asked to consider the observations of Beldam LJ at pages 20-28 of the transcript. That was a case involving a claim for personal injury damages by a claimant who had been a pillion passenger on a motorcycle. The driver was a young man, unlicensed, uninsured, and probably the worse for drink, and he had managed to bring about his own demise in the course of his accident.
123. The court approached the case on the basis that the proper enquiry was whether in all the circumstances of what was described as a joint venture, there was a duty of care owed by the driver, who had undoubtedly driven negligently, to his pillion passenger. It does not appear that the principle of ex turpi causa as such was decisive in the decision that no such duty of care was owed.
124. I was next invited to consider Flavis v Pauley & Morris, this was a decision of Nelson J in the context of an application to stay an action arising out of a road traffic accident on the grounds of ex turpi. The principle was discussed at paragraph 18 of the transcript and in fact little really can be gained from that case because I think it is right to say the application to stay failed, it was an interlocutory type of hearing and no final decision was made, although there was some discussion of principles.
125. I was also referred by Mr. Nichol to Eyres v Atkinson Kitchens in the transcript of a judgment of Crane J involving a motor accident by a driver against his own employer, where he himself had been driving beyond the permitted hours, similar to the New Zealand case of Buses. The judge pointed out at paragraph 17 of the transcript when considering a plea of ex turpi based on the dangerous driving of the claimant that the driving itself was not an unlawful activity as such, a point strongly relied upon by Mr. Nichol, driving dangerously only involved a departure from the standard of the careful, conscientious driver, and the judge rejected the application of the principle in those circumstances on the facts of that case. He thought the consequences of permitting the doctrine to be raised in answer to a claim, even where there was a high degree of negligence on the part of the claimant, would be subversive of the principle established by the Contributory Negligence Act and he thought that those were the operative principles rather than the public policy ex turpi causa (see particularly paragraphs 17-20 of his transcript).
126. In my judgment none of the above authorities were directed to the refinement of the doctrine as developed by the majority of the Court of Appeal in Hewison. Mr. Nichol asked me to refer to and prefer the approach of Ward LJ, who was a dissenting judge in that case, but as a circuit judge, although I read with interest Ward LJ's judgment, and perhaps was sympathetic to some of his observations, particularly his observations that the burglar did not work for the stolen proceeds of his trade, but he stole them, and therefore the talk of working for them was not a particularly appropriate analogy, he also appeared to have some sympathy to the claimant, in a not dissimilar Australian case, which I need not consider. I am bound by the majority in Hewison and it is not open for me to be so adventurous as to suggest that a dissent is to take preference.
127. Mr. Snarr made a number of points as to whether the conduct of the claimant was of a sufficiently serious nature to require the application of the somewhat draconian ex turpi principle as refined in the Hewison case. He said this was not a case of a trivial or merely administrative failure of a regulation. He said, firstly, the principle is one of public policy.
128. Secondly, the claimant, on my findings as they now emerge, would have continued to follow a deliberate course of driving while uninsured.
129. Thirdly, this was a criminal activity by reason of section 143 of the Road Traffic Act 1980, punishable by a fine on level five, which I believe is £5,000, endorsement of the licence and disqualification, although admittedly not by a custodial sentence. The claimant had in fact been guilty of the offence on the one day in respect of which he was charged, that is 23^rd March 2006, although he appears to have been treated comparatively leniently by the Magistrates' Court.
130. Fourthly, this was not a technical or a merely administrative matter. High policy required that drivers studiously apply themselves to observe the requirements of compulsory insurance. Furthermore, he pointed out, by section 152 of the Serious Organised Crime and Police Act 2005, the police have the power to seize a vehicle driven without insurance in cases where the driver was unable to produce evidence of insurance, and ultimately, I suppose, it might lead to either the sale away from the owner, or possibly crushing of the vehicle if it was thought to be a sufficiently serious case.
131. Fifthly, he pointed out that deliberately driving without insurance over a continuous period itself indicated a serious lack of responsibility, was manifestly antisocial, and might be indicative of even wider antisocial tendencies. In this connection he relied upon the explanatory memorandum of the Road Traffic Act 1988 (retention and disposal of seized motor vehicles) Regulations 2005, number 1606. I read from the memorandum, it says: "This explanatory memorandum has been prepared by the Home Office and is laid before Parliament by command of Her Majesty. The instrument will, subject to annulment in pursuance of the resolution of either house, come into force on 6^th July 2005…" and it refers to the new statutory powers of the police of seizing vehicles when the driver is uninsured.
132. Paragraph 7 is headed: "Policy background" and reads as follows: "According to an insurance industry estimate there are about 1.2 million persons, 1 in 20 motorists, driving regularly…" and I stress that word "…regularly while uninsured. Uninsured drivers impose a financial burden on honest motorists. The damage they inflict in road traffic accidents results in claims against the industry maintained Motor Insurance Bureau, or against the policy of insured drivers. In addition uninsured driving imposes other costs on society. These drivers are more likely to be involved in road traffic accidents, be non-compliant with other road traffic requirements and obligations, and potentially to be involved in other criminal activity. The involvement of uninsured drivers in fatal road traffic accidents has been the subject of considerable public and media pressure for action."
133. 7.2: "Driving without insurance against third party risk is an offence contrary to section 143 of the Road Traffic Act 1988. Detection of the offence, and therefore the possibility of enforcement, is being increased significantly by the expanded use of automatic numberplate recognition technology, which enables the police to make immediate checks against relevant databases [please note] including the motor insurers database." I said there was an official reference to that database and that is it in this document. "At present, however, the only action the police can take, after deciding that a person is driving without insurance, is to issue a fixed penalty notice or summons. The person is therefore able, albeit illegally, to continue driving while uninsured. The new power introduced by the Road Traffic Act 1988 by the Serious Organised Crime and Police Act 2005 will enable them to put an immediate stop to the uninsured driving by seizing the vehicle."
134. I should say here that is a general observation in relation to uninsured drivers who commit that offence on a regular and consistent basis. On my findings that is certainly the case of this claimant. It is right to say that he has no criminal convictions so far as I am aware. He declined to answer the question when asked specifically in the course of enquiries raised by the defendants and the matter was not further pursued. However, on my findings in this case, there was a willingness not only to commit the offence of driving while uninsured, but to follow the consequence of that by seeking to defraud the road tax fund by obtaining a road tax disc while being uninsured, which itself is a serious general criminal offence at least of obtaining by deception and misrepresentation.
135. Furthermore, the loss caused by uninsured drivers to third parties who find themselves in accidents must be borne by the MIB, the Motor Insurance Bureau. This was established and funded by the insurance industry before the Second World War. I need not go into the historical reasons for it. One motivation I understand was that the then government was threatening to nationalise the motor insurance industry if they did not do something about uninsured drivers, and that was at least one incentive to cause the industry to foregather to enter into this voluntary agreement. It is an unusual document, it takes the form of an agreement – the original was a formal agreement between representatives of the motor insurance industry and the relevant government minister. However, the MIB is not a philanthropic free source of funds, it is funded by the motor insurance industry and ultimately their funds derive from motor insurance premiums and, of course, if demands are made in respect of drivers who have not actually paid the premium, inevitably that must be passed on to lawful drivers who have, leading to an increase in premium. Indeed the MIB itself has produced a document setting out those rather unfortunate consequences. It says: "Police helpline rings the changes!" and apparently it was not to be published before Monday 22^nd October 2007, and it says this: "Uninsured driving costs law-abiding motorists in excess of 500 million pounds each year, or about £30 on their insurance premium. 160 deaths on the road each year in the UK are caused by uninsured drivers. 23,000 people are injured in accidents involving uninsured drivers each year…" and it goes on to invite steps to seek to restrain or prevent those unfortunate consequences.
136. Having considered all those matters, in my judgment the points made by Mr. Snarr in relation to public policy are compelling and forceful. On my findings the claimant had in the past for at least 16 months, and intended in the future at least for a period of 340 odd days, unless he was prevented by an accident or other event for which he was not responsible, to drive without the compulsory third party motor insurance. By his claim for loss of use of his vehicle in respect of that period he seeks compensation by way of reimbursement of the credit hire charge, which he has not actually disbursed himself at the moment, in respect of that projected unlawful use.
137. This claim, in my judgment, falls squarely within the principles identified by Clarke LJ in Hewison at paragraph 28, and the application of the modified principle of ex turpi causa which he there enunciated. Again I quote: "Ex turpi causa non oritur damnum where the damnum is the loss which would have been recovered but for the relevant illegal or immoral act." The claim for loss of use of this vehicle fails and is dismissed by reason of the application of that principle.
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