EVIDENCE, EXPERTS & ARSON: ANALYSING THE EVIDENCE WHEN SERIOUS ALLEGATIONS ARE MADE IN A CIVIL CASE
The decision of H.H. Judge Mackie Q.C. in Geneisuj.Net Limited -v- Allianz Insurance Limited  EWHC 3676 (QB) provides an object lesson in the analysis of evidence in a case where serious allegations were being made.
The claimant company was seeking losses from its insurer. The insurer alleged that a director of the company had started the fire and had avoided the policy.
The claimant adduced evidence from 12 witnesses, 9 of whom were heard at trial. There were 27 bundles. The trial lasted 7 days.
THE BURDEN OF PROOF
- Allianz accepts that the burden of proving that Mr Roe, as director of the Claimant, caused the premises to be set alight is on it.(Slattery v Mance)  1 QB 676). The test is the civil test, i.e. the balance of probabilities but “commensurate with the gravity of the charge” (see National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) (No.1)  1 Lloyds Rep 455, at 483 col 2 – 484 col 1). Proof of motive will not be conclusive, but will be persuasive (see Ikarian Reefer at 498 col 2). It is not necessary to produce a seamless proof or “smoking gun” as “…it is unlikely that there will be any documentary or other direct evidence of consent or connivance and that it is therefore necessary to consider what inferences, if any, can properly be drawn from the circumstantial evidence” (The Captain Panagos DP  1 Lloyd’s Rep 33, CA at 43 per Neill LJ).Inferences will be used to fill gaps, so long as there is some credible evidence; ambiguities are not fatal (see The Zinovia  2 Lloyds Rep 264 at 271 to 273, Bingham J). If there is sufficient unambiguous evidence the assertion regarding the insured’s “previous reputation and respectability will not save him from adverse judgment” (see The Zinovia at 273 col 1).
- Genesis generally accepts these principles, with some legitimate caution about the shipping cases, but as to the standard of proof makes two points. First while the parties are agreed that the Fire is caused by arson, arson by an aggrieved third party with intent to cause damage to the property of another is inherently more likely than arson by a person on his own property. Second, although the standard remains the civil standard, Mr Butler submits that in practice there is little if any difference between that and the criminal standard in a case of this nature – see The Zinovia at p.272, The Ikarian Reefer at p.459. Mr Butler also emphasises that the case does not come down to a straight choice between competing theories– the question for the Court is whether the insurer’s theory is proved on a balance of probabilities (The Popi M  1 WLR 948). However, the existence of a substantial or substantiated alternative possibility is relevant, and has the effect of preventing the burden of proof from being discharged – The Ikarian Reefer at p.459.
THE ROLE OF THE EXPERTS
We have a familiar story of expert witnesses straying outside the range of their expertise. Both parties called diesel experts since the position of diesel in the premises was an important issue.
- Dr Jewell is highly qualified both academically and by her experience to give expert evidence on the scientific aspects of the investigation of fires, particularly chemistry. As it happens I accept most of her evidence on these scientific matters which, in contrast to her speculation and her evidence about other matters, was not much challenged. Unfortunately her report, perhaps as a result of inexperience and certainly not a lack of good faith, gave an impression that she might not be approaching her task in a detached way. It was unnecessary and unhelpful for her to volunteer views such as those set out in Paragraph 9.4 onwards of her report. She refers to her understanding of what evidence is available to the Gwent Police on issues wholly unrelated to her expertise and to her opinion on the CCTV footage as to which, despite acknowledging that she is not an expert in the field, she opines “it appears extremely unlikely that the person in the CCTV footage immediately prior to the fire is Mr Roe…”. Against that background I place no weight on Dr Jewell’s more speculative views.
- Mr Robbins is by academic training a microbiologist, a discipline irrelevant to this fire but has immense experience of investigating fires- more than 1100 of them. Mr Butler is critical of his evidence and his lack of relevant academic qualifications. He points out that Mr Robbins inspected the Unit on 4 March (5 days after the Fire) and 7 March (8 days after the Fire). He was dealing with a seriously contaminated site. He says that Mr Robbins repeatedly strayed into matters of subjective interpretation which were far outside his expertise, such as, in CCTV and the weighing of allegedly inconsistent statements made by Mr Roe. Mr Butler says that Mr Robbins was reluctant to acknowledge the evidential matters which undermined his case and placed reliance, when in difficulties, on matters which were not contained in any of his three reports. He also points to the missing motherboard, a matter which I will deal with separately. Criticism of Mr Robbins’ academic qualifications is misplaced. He has a scientific training but relies not on this but on his great experience to establish his position as an expert. Fire investigators are to some extent a sub category of expert in that they tend to arrive on the scene well before conventional expert witnesses and form views which cause insurers to take decisions which may lead to litigation. Necessarily fire investigators apply a range of disciplines and it is not possible for them to be experts on all these. Further as part of their job they express conclusory views to their clients which, in litigation, are matters for the judge. Like Ms Jewell Mr Robbins relied on speculation to some degree and sometimes this was because, like Ms Jewell, he was drawn into it by Counsel. Similarly while I discount the speculation in Mr Robbins’ evidence and bear in mind that his starting point was his firm conviction that Mr Roe caused the Fire, I accept his good faith and all his evidence about the facts and matters which he himself observed and examined along with that of his colleague Mr Jowett.
EVIDENCE FROM THE POLICE
The claimant called evidence from police officers who investigated the fire. Often this was more “opinion” than evidence.
- Police evidence. It is no criticism of Genesis’s solicitors that they sought evidence from the police. I would have done the same. The starting point is that it is common ground that the police investigation of the fire was inadequate. The police officers gave evidence voluntarily for Genesis and in terms which were unconventional. Some of the evidence, mainly of an undisputed factual kind was helpful. Much of the rest was largely hearsay and contained inappropriate, and as it turns out, ill informed opinions about who caused the fire. DS Court, who became involved only in September 2011 after Mr Roe had complained to his MP, sets out as fact (“it was found”) the contents of an anonymous phone call to Mr and Mrs Roe when the words are simply what they say was said. He sets out in his statement as his understanding simply what Mr Roe records in his own statement. He records that it was “disappointing” that the CPS (inevitably given the remarkably thin evidence he had put forward to them) had declined to prosecute A and explains why he formed that view, again by reference only to the telephone calls. He is critical of Mr Robbins for urging investigation of the Roes but gives no reason for dismissing out of hand the categories of evidence heard in this case. Yet the investigation by Mr Robbins, unlike that of the police, had been thorough and professional. DS Court concludes that the fire was “more likely than not” connected to A.
- The evidence of PC Rees is similar in tone and content. I allowed PC Rees to give evidence in a 9 page statement even though it was served very late on 2 May 2014. I thought it just to do that but its lateness made it difficult for Allianz to respond. PC Rees was at least around at the relevant time. She too thought it helpful to say who she considered responsible for the Fire. This was without the benefit of her own investigations into the Fire or reviewing the alarm logs or viewing a complete set of CCTV footage or even visiting the Unit. She had been on lengthy sick leave and in 2014 had no reliable recollection of these comparatively minor events in 2010 and 2011. Ms Rees recalled from her notes that there was a link between A and 702. Apparently the number was on A’s phone stored to “Luke”. Luke was apparently eliminated from further inquiries. One of the vices of evidence of this low quality (in the sense of lack of documentary or other support not the honesty of the police officer) is that it leads to further unhelpful speculation about routes that cannot now be explored. Of course the material is consistent with the allegations of Mr Roe. Against that the fact that the number was stored on A’s phone may mean only that she received a text from 702 (as the police confirm that she did) or possibly that it came from “Luke” and she stored it as such. There could also be innocent reasons why the number ended as being shown, if it was, as that of Luke.
ASSESSMENT OF THE PRIMARY WITNESS FOR THE CLAIMANT
- Mr Roe is articulate and intelligent and clearly an excellent salesman. He has a charm, a persuasive manner and a force of character that instills confidence in able businessmen such as Mr Riegler and which quickly brought the police onto his side. I sensed from his evidence that his intelligence is quick rather than deep and that he may feel that he is abler than he is. I have in this judgment referred to the individual issues where I do not accept his evidence. I now refer to what I find to be other limitations in his evidence which overall persuade me that he is not telling the truth about the central issues.
- Mr Roe’s first statement is an important document setting out his account in detail over 31 pages before he has an opportunity to address specific challenges to his account set out in the evidence of Allianz. Mr Roe’s evidence contained statements which he must have known to be untrue. At the outset of his oral evidence he withdrew a claim in his first witness statement that the loss of Genesis’ exclusivity agreement had been caused by Allianz’ failure to pay this claim. He must have known this to be incorrect when he wrote it. At paragraph 76 he said in a sentence which, if true, would be highly prejudicial to A “After being questioned by the police (A) brought a claim for unfair dismissal ….”. This was untrue and Mr Roe must have known it to be untrue. Pages 6 to 12 of this statement deal with A and the Roe’s disputes with her which are at the forefront of Genesis’ case but the records are thin and much of the CCTV which he says demonstrated his case at the time is not available. The statement gives a detailed account of the Roe’s visits to the Unit the day before the Fire, as one would expect. It records in detail why the Roe’s were taking things to the Unit. It says not a word about the apparently substantial amounts of material that the Roes were taking out of the Unit (Allianz claims, without any other evidence, that this would have been material of value being removed from the Unit before the Fire).
THE OVERALL CONCLUSION
- The fact that Mr Roe did not give reliable evidence and was untruthful about certain matters does not of course mean that he caused the Fire. It does however cause me to doubt the truth of what he says about the central issues. My conclusion about the quality of his evidence is part of but also reinforces the conclusions I have formed about the individual aspects of this case. Mr Roe changed the mode of the CCTV on 16 February but was not candid in evidence about it. He took materials away on the Saturday but was not candid about it and he paused the CCTV as the expert evidence proves. The only purpose in doing this was to conceal something, the spreading of diesel which the expert evidence demonstrates was put onto the boxes and shelves. In reality no one else could have done this. I do not know what happened with the water pipe but Mr Roe’s evidence about it was unsatisfactory. I decline to try to identify the arsonist visually and what I get from that episode is that Mr Roe was untruthful about the watch. Mr Roe’s evidence about financial matters and about his dealings with A was in part demonstrably untrue. This lack of truthfulness about some matters means that I am cautious about giving Mr Roe the benefit of the doubt about others. I conclude overall that Allianz has clearly shown to the high standard identified at the outset of this judgment that Mr Roe, or someone acting on his behalf, deliberately caused the Fire and that therefore the claim of Genesis fails.
This post is part of a number of posts where we have looked at the way in which a court assesses evidence, in particular evidence from witnesses and witness statements. Here we see a cumulative effect of matters which gave rise to defendant (who called no live evidence of its own) establishing its case.
This issue is also discussed in a number of other posts.