Hamid v (1) Khalid (2) Co-Operative Insurance

10/04/2017

Paul McGrath appeared in the Court of Appeal in the case of Hamid, which gave guidance in relation to appeals concerning fraud allegations.

Case:              Hamid v (1) Khalid (2) Co-Operative Insurance [2017] EWCA Civ 201
Court:             Court of Appeal, 2 March 2017 (hearing) and 31 March 2017 (judgment)
Judges:           Lewison LJ, Henderson LJ
Counsel:         Paul McGrath appeared for the Second Defendant, instructed by Kellie Lacey (Weightmans)

Appeal – Findings of Fact – Expert Evidence

The Claimant brought proceedings against the First Defendant and Second Defendant for personal injury, credit hire and associated losses. The Second Defendant denied the claim and, by way of an Amended Defence, pleaded that the collision did not take place as alleged and averred that the claim was fraudulent. The First Defendant admitted fault for the accident and sought indemnity from the Second Defendant by way of a CPR 20 additional claim for a declaration. The Second Defendant and Claimant both called expert engineers to give evidence. The evidence was taken concurrently (colloquially referred to as ‘hot-tubbing’). Following a three day trial in Manchester CC, Recorder Howells allowed the Claimant’s claim, dismissed the allegations of fraud, and assessed damages on conventional principles. The Claimant and First Defendant applied for costs on the indemnity basis on the grounds that the Second Defendant had pleaded, but failed to prove, fraud. The Judge ordered costs on the standard basis as the Second Defendant had not acted unreasonably given the expert evidence and other concerns held. The Second Defendant appealed against the Judge’s decision allowing the claim and submitted that the Judge left out of account significant inconsistencies and troubling features, failed to provide adequate reasons for her decision and misevaluated the weight of the expert evidence. The Second Defendant received permission from a single Lord Justice on the papers and the matter was listed for a full appeal hearing. The appeal was resisted, and heard by the Court of Appeal on 2 March 2017. Judgment was handed down on 31 March 2017.

Held: That whilst there was force in the Appellant’s submissions regarding the unsatisfactory nature of the evidence, it could not be said that the ‘judge demonstrably failed to consider, or misunderstood, the evidence on these points’ and that the Appellant did not surmount the high threshold of satisfying the appellate Court that it ought to interfere with her findings: applying McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477 at [1] to [6], Henderson v Foxworth Investments Ltd [2014] UKSC 41; [2014] 1 WLR 2600 at [58] to [68]. Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at [114] to [115] and Grizzly Business Ltd v Stena Drilling Ltd and anor [2017] EWCA Civ 94 at [39] to [40]. The appeal was therefore dismissed and the decision of Mrs Recorder Howells upheld. The Court also gave guidance in relation to overturning acquittals of fraud at the appeal stage, citing with approval the decision of the Privy Council in Akerhielm v De Mare [1959] AC 789 (PC) at page 806 but drawing a distinction between ‘cases where an appellate court substitutes a finding of fraud for an acquittal below, which will only happen in the rarest cases, and cases where a retrial is ordered, without the appellate court expressing any concluded view on the defendant’s guilt’ citing what was said by Fry LJ in Glaiser v Rolls (1889) 42 Ch D 436 at 459. The Court of Appeal rejected the application by the Claimant and First Defendant for indemnity costs pointing out that were telling points which might have led a different trial judge to the opposite conclusion: see paragraph 35.