EWHC 2277 (QB)
QBD (Spencer J) 12/07/2016
PERSONAL INJURY - CIVIL EVIDENCE – FRAUD
EYEWITNESSES : FRAUD : FRESH EVIDENCE : INDEPENDENCE : PERJURY : ROAD TRAFFIC ACCIDENTS
A county court judgment in a personal injury trial arising from a road traffic accident was referred back to the trial judge for determination as to whether the judgment should be set aside where there was fresh evidence demonstrating a prima facie case of fraud and perjury relating to the independence of a witness.
The appellant company appealed against a county court judgment in a personal injury trial arising from a road traffic accident involving the respondent.
The accident, as a result of which the respondent suffered whiplash, occurred on a dual carriageway. He was driving a BMW car and one of the appellant's employees (X) was driving a lorry in the same direction. The respondent's case was that he was in the left lane when traffic appeared ahead. He claimed that he saw X behind him using the telephone and that X had tried to move into the adjacent lane before pulling back in, failing to stop and colliding with his car. X's evidence was that he had overtaken a vehicle and was returning to the left lane when he saw a BMW coming up fast behind him. The BMW had overtaken him before pulling in right in front so that there was no opportunity for him to stop when the BMW braked sharply. The evidence from the respondent's witness (H) was put forward as independent. His case was that he had been in the outside lane and had seen the lorry collide with the rear of the respondent's car when X pulled back into the inside lane. It was only when H reached his destination that he saw the respondent's car in the car park and said that he had witnessed the accident. The evidence of both H and the respondent was that they had not met before seeing each other in the car park. However, the police discovered that H's partner and the respondent's wife were friends on Facebook, which also contained photos of H and his partner socialising at the bar where the respondent worked. The appellant submitted at trial that there was a strong circumstantial case that H and the respondent knew each other. Whilst recognising the need to be alert to the possibility of fraudulent claims, the judge preferred the respondent's evidence to X's evidence. He found as a fact that H had witnessed the accident and that there was insufficient connection between them to undermine H's evidence. The claim succeeded and the respondent obtained approximately £6,000 in damages.
The appellant submitted that there was fresh evidence which more strongly demonstrated a friendly relationship between H and the respondent and suggested that they had perjured themselves.
HELD: Where fresh evidence was adduced in the Court of Appeal tending to show that the judge at first instance was deliberately misled, the court would only allow the appeal and order a retrial where the fraud was either admitted or the evidence of it was incontrovertible, Noble v Owens  EWCA Civ 224,  1 W.L.R. 2491 followed. There had been no admission of fraud and the court was not satisfied that the high threshold of incontrovertible evidence had been met. However, the new evidence did demonstrate a prima facie case of fraud. As a whole, the material strongly suggested that there was more of a relationship and a familiarity between H and the respondent than either of them had admitted at trial. The test was whether the material was capable of showing that the trial judge had been deliberately misled. Both H and the respondent had denied knowledge of each other prior to the accident and the material was capable of casting fundamental doubt on the truth of that evidence. If H and the respondent had deliberately suppressed their relationship it would be for the judge to decide if the inevitable inference was that they had lied about the circumstances of the accident. He had been entitled to find that there was insufficient evidence from which to conclude that H's evidence had been undermined. However, had he been aware of the additional material there was a strong prima facie case that his decision might have been different. There was a prima facie case of fraud and perjury which had to be determined by the lower court. The case was referred back to the county court for determination by the trial judge; if he was satisfied that the judgment should be set aside, it was open to him to do so.
For the appellant: Ian Clarke
For the respondent: Mr Wright
For the appellant: DAC Beachcroft
For the respondent: Lyons Davidson
LTL 19/7/2016 EXTEMPORE