The Judicial Committee of the Privy Council Decisions

Stemson v. AMP General Insurance (NZ) Ltd (New Zealand) [2006] UKPC 30 (21 June 2006)

Privy Council Appeal No 52 of 2004

Michael David Stemson Appellant

v.

AMP General Insurance (NZ) Ltd Respondent

FROM

THE COURT OF APPEAL OF

NEW ZEALAND

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 21st June 2006

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Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Hope of Craighead

Lord Scott of Foscote

Baroness Hale of Richmond

Lord Mance

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[Delivered by Lord Hope of Craighead]

1. The appellant, Michael Stemson, is the owner of an historic villa in the township of Coromandel known as Firlawn House. On 12 May 1992 the building was partially destroyed by fire. At the time of the fire it was insured with the respondent, AMP General Insurance (NZ) Ltd ("AMP"). The appellant made a claim on the policy. Having investigated the incident AMP accepted that fire damage was within the policy. But it declined liability to indemnify him. AMP took the view that the fire had been started deliberately, and that it was the appellant himself who lit the fire.
2. On 11 May 1998 the appellant commenced proceedings against AMP in which he claimed $295,000 for reinstatement of the property, together with damages for consequential loss and exemplary damages. AMP maintained its declinature of liability. It did so on two grounds. Its primary defence was that the appellant set the fire himself. As a secondary defence it alleged that the appellant had made a false statement in the course of the investigation which entitled it to avoid the claim.
3. On 24 April 2002, after a trial lasting 18 days, Hammond J held that AMP was entitled to avoid liability under the policy. He upheld its defence on both grounds. He was satisfied that the appellant set the fire at Firlawn House himself. He also held that the appellant had made a false statement in the context of the investigation which provided AMP with a separate ground for avoiding liability. On 18 March 2003 the Court of Appeal (Tipping, Salmon and Doogue JJ) dismissed the appellant's appeal against Hammond J's judgment. The reasons for its decision were set out in a judgment of the court delivered by Tipping J. He said that it was common ground, as it had been at the trial, that the fire was arson. So the appeal was confined to the issue whether the appellant was the arsonist. Having reviewed the decision of the trial judge, the court was not persuaded that he erred in fact in concluding that the appellant was responsible for the fire. The appellant sought leave to appeal against the Court of Appeal's judgment to their Lordships' Board. On 23 June 2004 he was granted final leave to appeal.
4. A separate judgment has been prepared by Lord Mance on the question whether AMP was entitled to avoid liability because the appellant said falsely in a written statement to AMP's insurance investigator, Mr Byrne, that he had never intended to sell Firlawn or even consider putting it on the market. Their Lordships conclude, for the reasons he gives, that Hammond J was right to hold that this provided a separate ground which entitled AMP to avoid liability under the policy. In this judgment they propose to deal with the primary question at the trial and the only question which was argued in the Court of Appeal. This is whether Hammond J was entitled to conclude that it was the appellant himself who set the fire to the premises.
5. Mr Witten-Hannah presented the appeal on the appellant's behalf. He had not appeared in either of the courts below, and he told the Board that he had been briefed only after the issues had been settled and the appellant's written case had been drafted. He acknowledged at the outset that the appeal was directed to the factual findings of the trial judge which had been upheld by the Court of Appeal and not to any error of law. He also acknowledged that it is the Board's practice not to embark on a third trial on issues of fact. He sought to address this difficulty in preliminary submissions which he had prepared in writing and in oral argument. Their Lordships are grateful to him for the clarity of these submissions and for the careful and attractive way in which he developed them.

The issue at the trial

6. There is no doubt that the issue which was before Hammond J at the trial was simply one of fact. As he explained in para 4 of his judgment, it was common ground that if the appellant was implicated in the arson AMP was entitled on that account to decline the claim. The central issue therefore was whether it was the appellant who set fire to the premises. In para 9 the trial judge emphasised that the case was entirely a factual one. There was no dispute about the law. AMP accepted that the onus was on it to prove the appellant's implication in the fire, and that it had to do so to a very high standard. AMP's case was that the appellant drove to Auckland on the evening of 11 May 1992 leaving Simon Laing, who was living at Firlawn, in charge of the property. Later that evening he returned to Coromandel. He went to the rear of the house, where he threw a Molotov cocktail into the bedroom. He then went to the front of the house, where he threw another Molotov cocktail into the lounge. Having set the fire he drove immediately back to Auckland.
7. Direct evidence in support of AMP's case came from Mr Laing, who was in the house when the fire broke out. He said that during the period prior to the fire the appellant offered him $50,000 to burn the house down, and that he had also asked him how to make a Molotov cocktail. In the early hours of 12 May 1992 he was wakened by a Molotov cocktail crashing through his bedroom window which exploded on the floor near the foot of his bed. He ran outside as the curtains caught fire, called the emergency services and then ran back into the house twice to get an air pistol which he had in his bed and to save the TV. He did not see who started the fire nor did any other eyewitness. But there was a substantial amount of circumstantial evidence indicating that the appellant had a motive for wanting to set fire to the house. There was also evidence that he had the means to do so, as various pieces of equipment which could have been used for making Molotov cocktails were found in his car after the incident. There was also evidence that the appellant said things to various people which indicated that he was responsible for the fire. The fire damage was the subject of a report by a forensic scientist, Miss Boyd. She found traces of petrol in a bottle which had been found under a sofa in the lounge after the fire and in a sample of wood from beneath the sofa.
8. The appellant had previously operated a restaurant and bar at Firlawn in partnership with Libby Daniels. In June 1991 he bought out her interest under an agreement which gave her a pre-emptive right in the event of his selling or transferring his interest in Firlawn. But he was a poor manager, the business was running at a loss and the condition of the property was deteriorating. The judge found that by the week of the fire the appellant's financial situation had reached such a stage that it was desperate. He also found that the appellant had developed an obsession that Libby Daniels or her mother Barbara Doyle wanted to get Firlawn back from him. He originally blamed the fire on the Doyle family. But after all the evidence had been led his counsel said that his case was that the fire was started by Mr Laing in the front room and that he then poured petrol in the rear bedroom and lit a match there which caused another fire and an explosion.
9. At the heart of the trial judge's decision on the central issue of fact was the view that he formed about the credibility of various witnesses. There were a number of witnesses whose credibility, for a variety of reasons, was under challenge. They included Mr Johannes Stol who said that he had seen the appellant set fire to his Model A motor car at Firlawn on 27 April 1992, Mr Savage who owned a nearby hotel who said that he woke up on smelling smoke, went to the house out of concern for the occupants and saw the bedroom window exploding out as he stood beside it, and Mr Derek King who made a statutory declaration in which he said that the appellant said things to him which indicated that he was responsible for the fire which in a later affidavit he sought to resile from. But the issue of credibility was especially important in the case of the appellant and Mr Laing.
10. Mr Laing had been an alcoholic and had a number of criminal convictions. These included convictions for offences of dishonesty, drug offences and other petty disorder offences. The trial judge said that he paid particular regard to the way Mr Laing gave evidence in court in view of his record. Having considered his demeanour in court, and the extent to which his evidence was corroborated by other witnesses, he accepted his evidence. He noted that when Mr Laing left the house as it was on fire he was observed by other witnesses to be traumatised by his experience. This was the case too in regard to his behaviour in court. He broke down as he was explaining what had happened to him. The trial judge was satisfied that his reaction in court was not contrived. In his opinion it was quite inconsistent with his having started the fire.
11. As for the appellant, he too had a criminal record. He had a conviction for theft which was under a false name. He had admitted the conviction to Mr Byrne but not the false name. He tried repeatedly to evade this aspect of the conviction when giving evidence. In various other respects the trial judge regarded his evidence as evasive and contradictory. His conclusion was that the appellant was manipulative, and he regarded his evidence as totally unreliable. In his concluding remarks in para 182 the judge said that he was satisfied that the appellant lit the fire at Firlawn himself. He had a motive, possibly from spite but certainly financial, to bring this about. He had the knowledge, the means and the opportunity to do so. He had made admissions to several people that he had started the fire, and there was also powerful circumstantial evidence. The evidence to the effect that he had done this was clear and convincing. The judge said that if it had been a criminal trial he would have convicted the appellant.

The issue in the Court of Appeal

12. The appellant's counsel attempted to challenge the findings of fact by the trial judge in the Court of Appeal. But he had to accept that an appellate court is constrained when considering findings of fact made by a trial judge, for the reasons identified by Tipping J in Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190, 198 where he said:

"Appellants often wish to treat appeals as retrials on matters of fact. Counsel must, of course, be faithful to their instructions, but they have a duty to make it plain to their clients that the ambit of an appeal on fact is very narrow. Any tendency or wish to engage in a general factual retrial must be firmly resisted. The court will not reverse a factual finding unless compelling grounds are shown for doing so."

13. The court rejected the argument that Hammond J erred in fact when he concluded that the appellant was himself responsible for the fire. It did so without finding it necessary to call on AMP's counsel to address the court orally. In its judgment it dealt only briefly with the various matters which had been raised by counsel. In para 14 of the court's judgment Tipping J said:

"This appeal developed into the kind of exercise which this court was seeking strongly to discourage in Rae's case. Mr Stemson really wanted a full factual re-examination of almost all the relevant aspects of the case, based solely on the transcript of evidence and the various documents. Such an exercise cannot capture the advantages possessed by the trial judge in a case such as the present. It is of course possible for an appellant in circumstances like these to demonstrate that in spite of those advantages the trial judge has come to an erroneous factual conclusion; but to achieve that end the authorities show that the appellant must establish that the trial judge was plainly wrong."

14. Having said that the court had done its best to give as much credence as possible to the points made on the appellant's behalf, Tipping J summed up its conclusions in para 16:

"Although the judge's ultimate conclusion involved drawing an inference from all the evidence which he accepted, the inference was aided by the judge's finding that Mr Stemson had made significant admissions. Most of the primary facts found by the judge on the basis of which he drew his ultimate inference were based on the judge's assessment of oral evidence and, in material respects, matters of credibility. Mr Stemson has shown no basis upon which this court might properly differ from the judge's primary findings. The inference which he drew from those findings was a strong one and we are certainly not persuaded that the evidence was insufficient to enable him to draw it to the standard required. By the same token the evidence was such that the judge was fully entitled to reject Mr Stemson's denial that he was implicated in the fire."

15. The Court of Appeal's judgment is carefully worded. The court refrained from making findings of fact of its own, because it declined to enter into a detailed examination of the evidence. The issue which it had to decide was nevertheless the same as that which was before the trial judge, and it was one of fact. By endorsing the judge's decision on the grounds stated in its judgment it was in effect making the same finding of fact on that issue as that arrived at by the trial judge. The case is therefore one in which there are concurrent findings by the courts below that it was the appellant who set fire to the property.

The Board's practice

16. At the outset of his oral argument Mr Witten-Hannah accepted that judges sitting in a court of last resort ought not to disturb a concurrent finding of fact by the courts below unless it can be clearly demonstrated that the finding was erroneous. He was, of course, right to do so. In Savill v Chase Holdings (Wellington) Ltd [1989] 1 NZLR 257, 319, delivering the judgment of the Board, Lord Bridge of Harwich said:

"This appeal turns upon issues of fact which have been concluded against the appellants by concurrent findings of both the courts below. As is well known the Board's practice in such circumstances is not to embark upon a third trial of the issues of fact."

The basis upon which the rule rests does however require some elaboration.

17. An early formulation of the rule is to be found in Allen v Quebec Warehouse Co (1886) 12 App Cas 101, 104 where Lord Herschell LC, delivering the judgment of the Board, said:

"Their Lordships having arrived at the conclusion that there has been no error on point of law, the sole question that remains for determination is whether the judgment of the court below ought to be reversed on the ground that the judges have taken an erroneous view of the facts. Now it has always been the view taken by this Committee in advising Her Majesty, when the question for determination has been whether the concurrent judgment of the judges who have been unanimous below should be supported or reversed, that unless it be shown with absolute clearness that some blunder or error is apparent in the way in which the learned judges below have dealt with the facts, this Committee would not advise Her Majesty that the judgment should be reversed. That principle has been laid down in many cases."

18. A similar rule applies in the House of Lords in its conduct of appeals as the court of last resort in the United Kingdom. In Owners of the P Caland and Freight v Glamorgan Steamship Ltd [1893] AC 207 there were concurrent findings on the question whether a vessel was showing a red light when it came into collision with another vessel. Lord Herschell LC said at p 215 that a mere finding of fact in which both the courts below had concurred ought not to be disturbed unless it could be clearly demonstrated that the finding was erroneous:

"In the present case, although I might probably myself have come to a different conclusion, I cannot say that any cardinal fact was disregarded or unduly estimated by the courts below. I can lay hold of nothing as turning the balance decisively the one way rather than the other. I think the decision of the question of fact at issue depends upon which way the balance of probability inclines, and I am not prepared to advise your Lordships that it so unequivocally inclines in the opposite direction to that indicated in the judgments of the courts below, that this House would be justified in reversing the judgment appealed from."

Lord Watson said at p 216 that judges sitting in a court of last resort ought not to disturb concurrent findings of fact by the courts below, unless they could arrive at a tolerably clear conviction that the findings were erroneous. Lord Ashbourne said at p 217 that, although he was himself strongly disposed to think that the red side-light was visible, this was a question of inference and balance of probabilities and he was unable to find any clear fact on which he would be justified in arriving at a conclusion different from that of the courts below.

19. The decision in the P Calland was followed and applied in McIntyre Bros v McGavin [1893] AC 268, as it has been in many subsequent cases. In McIntyre Bros v McGavin the question was whether the condition of a river which the appellants were alleged to have polluted was the same as it was before they commended the activities against which the respondents sought interdict. Lord Herschell LC said at p 275 said that their Lordships in that case were all agreed that a concurrent finding of fact could only be reversed where it could be demonstrated either that some cardinal fact had been overlooked or that some altogether erroneous view had been taken of the bearing of the evidence upon the case which made the balance incline decisively and unequivocally in a direction opposite to that in which it had been found to incline by the courts below. These observations, and those in the P Calland, indicate the standard that must be achieved for concurrent findings of fact to be reversed by the Board.
20. In Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy [1946] AC 508 Lord Thankerton reviewed the decisions of the Board on this issue. At p 521 he set out various propositions as to the practice of the Board and the nature of the special circumstances which would justify a departure from it. Among these propositions were the following:

"(1) That the practice applies in the case of all the various judicatures whose final tribunal is the Board.

(2) That it applies to the concurrent findings of fact of two courts, and not to concurrent findings of the judges who compose such courts. Therefore a dissent by a member of the appellate court does not obviate the practice.

(3) That a difference in the reasons which bring the judges to the finding of fact will not obviate the practice.

(4) That, in order to obviate the practice, there must be some miscarriage of justice or violation of some principle of law or procedure. That miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense of the word a judicial procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if the propositions be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the courts could arrive at their finding is such a question of law.

(5) That the question of admissibility of evidence is a proposition of law, but it must be such as to affect materially the finding. The question of the value of evidence is not a sufficient reason for departure from the practice.

(6) That the practice is not a cast-iron one, and the foregoing statement as to reasons which will justify departure is illustrative only, and there may occur cases of such an unusual nature as will constrain the Board to depart from the practice."

Discussion

21. Mr Witten-Hannah did not seek to bring his case within any of the exceptions that were identified by Lord Thankerton. He addressed the practice head on. He submitted that there was no evidence upon which the lower courts could arrive at their findings to the high standard of proof that was required in this case. He said that in the absence of such evidence the Board should agree to review the evidence, especially as the Court of Appeal had effectively declined to do this because the appeal was covered by its decision in Rae v International Insurance Brokers Ltd. He made it clear that he was not challenging the rule laid down by that case. But he submitted that, as it did not go into the facts at all, the Court of Appeal did not make the findings of fact that were needed for the application of the rule. All the Court of Appeal had done was support the process of reasoning which had led the trial judge to make his finding.
22. He laid particular emphasis on two points of detail. The first was the observation by the trial judge in para 85 that the findings by Miss Boyd, the forensic scientist, were "entirely consistent" with Mr Laing's account of the incident. The second was that the Court of Appeal confined its endorsement of the findings by the trial judge to the question who started the fire in the bedroom. It did not examine the question who was responsible for the fire in the lounge.
23. As to the first point, Mr Witten-Hannah said that the critical issue was whether the location and appearance of broken glass at the bedroom window was consistent with an object having been thrown through the window or its having been broken as a result of the fire inside it. As he put it, this was the corner stone of his appeal. If it was the fire that broke the window it must have been started from inside the room by Mr Laing. Mr Savage's account of a burst of flame exploding out of the window from inside, shattering all the window panes, supported that explanation. As for Miss Boyd's evidence, she said that she was unable to find any evidence of glass having been broken before the fire. She did not find any glass inside the bedroom. The glass which she found was outside the window. The trial judge omitted any reference to this when he said that her evidence was entirely consistent with the account given by Mr Laing. Had he analysed the evidence correctly he might have come to a different conclusion as to whether it had been proved to the required high standard that it was the appellant who set the fire.
24. As to the second point, the Court of Appeal had refused to go into the facts. So it had omitted to consider the state of the evidence on the quite separate question as to who started the fire in the lounge. In the result there were no concurrent findings on that issue. It was an issue that the Court of Appeal had simply not addressed. It had made no finding as to whether or not the presence of fire in both locations was the work of two arsonists and, if so, whether they were acting together or independently. This was important, because if Board was satisfied that the trial judge was wrong to conclude that the fire in the lounge was set by the appellant it would suggest that someone other than the appellant was responsible for the fire in the bedroom. It was therefore open to the Board to re-examine the whole issue as to whether it was the appellant who set fire to the premises.
25. Their Lordships are not persuaded that there is any substance in either of these two points. It has not previously been suggested that the fire was the work of two arsonists, whether acting together or independently, or that the person who set the fire in one location was not the same person as that who set the fire in the other. The case has proceeded hitherto both at trial and in the Court of Appeal on the assumption that the person who started the fire in the bedroom started the fire in the lounge too. As for Miss Boyd's evidence, there were other aspects of it which supported Mr Laing's account. These were the aspects to which the trial judge referred in para 85 when he said that her evidence was entirely consistent with his account. He omitted to mention that she did not find any evidence that the window had been broken before the fire. Her position was that she could not say one way or the other whether this had happened. It can be accepted that the judge went too far when he said that her evidence was entirely consistent with that of Mr Laing. But this is a point of no significance in the context of the case as a whole. The overwhelming weight of the evidence was that it was the appellant and not Mr Laing who was the arsonist.
26. The case is accordingly one to which the Board's practice applies. No grounds have been shown for opening up the concurrent findings of the courts below that it was the appellant who set fire to Firlawn. It cannot be said that some cardinal fact has been overlooked or that some altogether erroneous view has been taken of the evidence. Nor, it must be stressed, does the fact that the courts below gave different reasons for arriving at the same conclusion on the critical issue as to whether it was proved that the appellant was the arsonist make the practice inapplicable. Their Lordships are unable to reach any other conclusion than that the appeal must be dismissed.

Costs

27. Mr Ring QC submitted that if the appeal were to be dismissed AMP should be awarded its costs before the Board on the indemnity basis. He said that this would be appropriate to reflect the finding by the trial judge, which the Court of Appeal had endorsed, that the appellant set fire to his own property. The inevitable conclusion was that his claim against his insurers was a fraudulent one. He had already taken his insurers through two courts without success. He ought not to have subjected them to the expense of resisting a further appeal. For the appellant Mr Witten-Hannah maintained that his appeal had not been a frivolous one. While he accepted that costs must follow the event, he asked that the usual order should be made for costs to be taxed on the standard basis.
28. Their Lordships are in no doubt that an award of costs on the indemnity basis is appropriate in this case. The question is whether such an award is justified having regard to the appellant's conduct. There are concurrent findings against him that he set fire to the premises. His claim on the policy claim must be taken to have been a fraudulent one from the outset. He must have known that he was attempting to obtain money from the respondent by false pretences. Yet he pursued the claim and wrongfully put the respondent to the expense of defending it: see R A Houghton and Mancon Ltd v Sunderland Marine Mutual Insurance Co Ltd [1988] 1 Lloyd's L R 60, 70; Gate v Sun Alliance Insurance Ltd (1995) 8 ANZ Insurance Cases 75,806, 75,817-8. In these circumstances his conduct in subjecting the respondent to a further appeal to the Board was an abuse of process, and there is no answer to Mr Ring's submission that an order for costs on the indemnity basis is appropriate. The issue did not arise in the lower courts because the appellant was in receipt of legal aid in the High Court and an application for legal aid was pending in the Court of Appeal. That is no longer the case, as the appellant does not have either the benefit of or the prospect of legal aid in the proceedings before the Board.

Conclusion

29. Their Lordships will humbly advise Her Majesty that the appeal should be dismissed. The appellant must pay the respondent's costs before the Board as taxed by the Registrar on the indemnity basis.

Concurring Judgment by Lord Mance

30. The main point in this appeal is dealt with in the opinion of the Board prepared by Lord Hope of Craighead. The purpose of this second opinion is to address the second point in this appeal on which the appellant would also have had to succeed, if he was to recover from the respondent insurers.
31. The point concerns the judge's conclusions in paragraphs 185-191 of his judgment that the appellant, in a written statement given on 21^st May 1992 to Mr Byrne, an insurance claims investigator and adjuster engaged by the respondent, made a knowingly false statement "of very distinct significance in the context of the investigation into this fire", and that this provided "a separate ground which entitled [the respondent] to avoid liability under the policy, quite independently of the arson".
32. The judge, in paragraph 186 of his judgment, said that the statement made by the appellant was "that he had never intended to sell Firlawn or even considered putting it on the market". This was not correct. The statement actually made was "I have never attempted to sell, nor even considered putting it on the market". However, in the course of his detailed examination of the evidence on this point in paragraphs 45-48 of his judgment, the judge summarised this statement correctly and made findings as follows:

"6. Abortive Attempts to Sell

[45] I find this conflict with the Daniels interests, and Mr Stemson's worsening financial position, led to a serious attempt by Mr Stemson to sell Firlawn shortly before the fire. He was in a vulnerable position, both in financial and litigation terms. He did not want Firlawn to return to the hands of Libby Daniels, at any cost.

[46] I find that Mr Stemson went to see a real estate agent in Coromandel, a Mr Jim McLean. He told Mr McLean that he wanted to sell the house – but surreptitiously, because Ms Daniels had a right of first refusal. Mr McLean was to attempt to sell it but there was to be no listing authority.

[47] Mr McLean's evidence was straight forward on this point. Mr Stemson denies this account. He admits that he went to see Mr McLean. He says that this was as an advisor and not in his capacity as a real estate agent. Mr Stemson portrayed the event as an enquiry by him to Mr McLean to what would happen to Firlawn House and, in particular, Ms Daniel's right of first refusal, in the event that he should die. It has to be said that Mr Stemson's evidence on this point was quite unsatisfactory. In a written statement to Mr Byrne on 21 May 1992 he said that he had never attempted to sell Firlawn House, nor even considered putting it on the market. He later attempted to change his position when it became apparent that AMP [the respondent] could point to the statement as being a ground of false information given to its investigator. Then, in a 3 December 1992 interview with Mr Byrne, he was asked if he had ever considered selling Firlawn. He said "yes", but then responded "no" in cross-examination. He also said in evidence that on the day in question he had thought that he ought to sell "to save his life". Mr Stemson's evidence on this subject is utterly contradictory and inconsistent in a number of places (including a taped interview at the offices of McIlroys, solicitors, on 3 December 1992). It has to be put on one side as being quite unreliable against the clear and unshaken evidence of the real estate agent, Mr McLean, who was supported in material respects by Mr Laing.

[48] I find that in the period shortly before the fire at Firlawn, Mr Stemson had distinctly in mind selling the property. And, he actively took steps in that direction but in such a manner as to thwart the possibility that the property might be reclaimed by Ms Daniels."

33. Mr Witten-Hannah did not in his oral submissions pursue any challenge to the factual accuracy of these paragraphs or the findings which they contain. Nor could there realistically be any. But these paragraphs involve clear findings both that the appellant considered selling, and that he made a serious attempt to sell, Firlawn shortly before the fire. They also show the basis for the judge's conclusion that Mr Stemson's contrary statement on 21^st May 1992 was "knowingly false". The judge's error, in the course of his later conclusions, in describing the statement made can have had no possible effect on the nature of his conclusions.
34. Mr Witten-Hannah submits nevertheless that the respondent can have no basis for denying liability, in circumstances where, as the judge found, the appellant admitted the true position on 3^rd December 1992, four months before the respondent rejected the insurance claim in April 1993. He submits that the respondent cannot have relied on the false statement in that rejection. At one point, he also submitted that the case should be seen as one where the appellant had himself corrected the false statement (in effect voluntarily), rather than one where the lie was detected or unravelled by insurers. That submission, even if it could have any legal relevance, does not marry with the judge's findings in paragraph 47 of the judgment. The correction was only made when and because it became apparent that the respondent could point to the previous statement as a ground for saying that Mr Byrne had been given false information.
35. Mr Witten-Hannah did not take any issue with the statements of legal principle advanced in the judgment given by Mance LJ in Agapitos v. Agnew [2003] QB 556, including those in paragraph 37 relating to the use of fraudulent devices to promote a claim. In that regard, he specifically accepted the following opinion expressed in that paragraph:

"Does the fact that the lie happens to be detected or unravelled before a settlement or during a trial make it immaterial at the time when it was told? In my opinion, not."

36. On that basis, the Board has no hesitation in upholding the judge's conclusion that, quite apart from any question of arson, the respondent was entitled to reject the appellant's insurance claim (as it did) on the ground that the appellant had sought to promote it in May 1992 by lying to the respondent about the position, and his state of mind, regarding any attempt to sell the house prior to the fire. The materiality of such matters to the respondent's investigation and evaluation of this insurance claim is not challenged, and is, as the judge indicated, obvious.