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Court of Appeal considers whether, in a fraud case, one Claimant can be excluded from court whilst another Claimant gives their evidence

14th July 2016

James Laughland, instructed by Gemma Wilkinson of Keoghs, acted for the Defendant insurer where the issue for determination was whether a Judge had been right to exclude a Claimant, against his will, from court whilst another gave his evidence. Fraud had been alleged and the trial judge agreed to the Defendant’s request that one Claimant be kept out of court whilst the other was cross-examined.

The Court of Appeal held that there was no absolute rule entitling a party to be present in court throughout but did hold that the starting point if the issue arose was that a party is entitled to be present throughout the hearing of a civil trial. The Judge’s decision in this case was held to have been wrong as she had failed to base her consideration upon that starting point, if at all. However, when considered as a whole the Court of Appeal was not satisfied that the exclusion of one Claimant had rendered the trial for both unfair and therefore dismissed that ground of appeal.

A separate issue was whether the Judge had been correct to make a finding of fraud in this case. The Court of Appeal found for the Claimants on this and set aside that aspect of the order. However, the Judge’s decision that nonetheless the Claimants had failed to prove their case was maintained. In discussion of this aspect of the case the Court of Appeal considered the case of Hussain v Hussain & Aviva [2012] EWCA Civ 1367 and rejected the Claimants’ proposition that Hussain establishes the parameters of appropriate inferences that can be drawn in a case where fraud is alleged, but there is no direct evidence connecting the parties alleged to be in a fraudulent conspiracy.

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James Laughland

James Laughland
Year of Call: 1991