PLEADINGS, EVIDENCE & PUTTING THE CLAIMANT TO PROOF: AHMED -v- LALIK & THE CO-OP
In Ahmed -v- Lalik & Co-operative Insurance Society Limited  EWCA 651 (QB) Mr Justice Cranston considered some important issues in relation to pleading, evidence and procedure in a case where a defendant insurer has suspicions about the nature of a claim.
The claimant brought an action for damages following an accident that occurred in 2012 when he said his car was struck from behind by a vehicle driven by a Mr Lalik. Mr Lalik played no part in the proceedings. The claimant stated that he had 3 others in the car with him or from two friends who, he said, attended the scene of the accident.
- An allegation of fraud must be pleaded clearly and explicitly. It will not be inferred.
- However a defendant can put a claimant to proof of his case, and plead facts from which the court may infer that the claimant has not suffered injury or damage.
- The trial judge was entitled to draw adverse inferences from the absence of key witnesses and the claimant’s failure to allow the vehicle to be inspected.
The second respondent’s defence was dated 22 March 2013. It put the appellant to strict proof, inter alia, that the accident had occurred and that there were no links between the appellant and the first respondent. The defence stated that the second respondent averred that the claim was vitiated for lack of bona fides. In accordance it said with the guidance in Kearsley v Klarfeld  EWCA Civ 1510;  2 All ER 303, it set out the matters that gave rise to its allegation of a suspected lack of good faith and the facts upon which it would invite the court to draw a negative inference. First, the defence said, there were the difficulties that the second appellant’s enquiry agents had in making initial contact with the first respondent, Mr Lalik. The defence invited Mr Lalik to attend the trial and be subject to vigorous cross-examination. Secondly, the defence stated that it had been presented with two further claims, by the appellant’s mother and brother, who were allegedly passengers in the appellant’s vehicle, but in spite of their being represented by the same solicitors, their claims had not been litigated. The defence invited them to litigate their claims. Thirdly, the defence stated that the second respondent had repeatedly made the appellant aware of its concerns about his knowledge of the first respondent, but there had been no response.
Fourthly, the defence stated that the second respondent was aware that the vehicle was allegedly involved in the previous accident in November 2011, while driven by the appellant, where it sustained damage to the O/S/R and O/S/F. The second respondent noted that these were the same impact areas as in the present incident. The second respondent had requested access to the appellant’s vehicle for the purpose of preparing a damage consistency report on numerous occasions, but had been refused. Fifthly, the second respondent invited the appellant to call potential witnesses/intimated parties/occupants of respective vehicles as witnesses, summonsing them if necessary, failing which it would invite the court to draw adverse inferences. Finally, the defence put the appellant to proof that injury was sustained and that it was caused as a result of the accident. The medical report, the defence said, was predicated on the credibility of the appellant and that credibility is an issue.
“(i) There were no objective signs of injury and that the report was based primarily upon the anecdotal evidence of the appellant which was in question.
(ii) The appellant advised the medical expert that he had only been involved in one previous road traffic accident in September 2011 from which he had recovered prior to the index accident. His GP records however suggested that he was involved in another road traffic accident on the 12 November 2011 where he suffered injuries to the back and neck.
(iii) That accident had been described thus, “Mr Ahmed was involved in a road traffic accident. He was driving. A relative did not stop at a give-way sign. He was hit on the side.” The second respondent found it incredible given the concerns it had raised in relation to the suspected pre-existing connection between the appellant and first respondent, that he should be involved in a road traffic accident only seven months earlier in which he knew the driver of the other vehicle. The defence invited the court to draw adverse inferences from this.”
The claimant and his sister gave evidence. The defendant insurer gave no evidence. The trial judge rejected the insurer’s contention that there was a link between the claimant and the defendant’s insured. There was no evidence.
“If a positive case of fraud is to be an advanced, then it must be pleaded and proved. It is quite wrong in my judgment, as the second respondent seeks to do, merely to imply fraud.”
The judge turned to the previous accident. After noticing the difference between the GP records and Dr Malik’s report, the judge said:
“It is obvious that the appellant was grossly exaggerating his symptoms to the forensic examiner because, if he had been able to play football on 17 November 2011, that was completely inconsistent with the severity of the injuries reported in the report of 12 February 2012.”
- As regards the absence of evidence from the mother and brother, the judge noted the explanations for their absence but said that these did not account for the mother’s failure to give a witness statement. There seemed no reason why the brother could not have given evidence if he had wished to. Both the mother and brother had intimated that they would seek to bring whiplash claims arising from the accident, although no proceedings had yet been issued. Similarly, no explanation had been given for the absence of the two friends.
“Given the nature of the allegations made by the second respondent, I am entitled to and do draw inferences from the absence of at least the brother and the two friends.”
The judge concluded:
“The appellant’s evidence was, in my judgment, even less satisfactory. It is clear, as I have said, that the 2011 personal injury claim was a fraud. As I have said, the report of the 12 February 2012 was grossly exaggerated as the GP’s note of the 18 November 2011 demonstrates. The appellant had been a law student and after his experience of the 2009 accident he knew how to manipulate the system of claiming personal injuries. There is no engineering evidence that any damage was caused in 2012 rather than 2011. I am entitled to draw inferences from that under the doctrine Omnia praesumuntur contra spoliatorem. I draw the inference from the refusal to allow an inspection that, had an inspection been carried out, it would have revealed that there was no or possibly negligible damage from the 2012 accident.”
The judge accordingly found for the defendant insurer and dismissed the claim.
The claimant appealed arguing that there had been procedural errors, errors of law and unsustainable findings of fact.
- In advancing his submission, Mr Jenkins urged me to have regard to Hussain v. Amin, Charters Insurance Ltd  EWCA Civ 1456, an unsuccessful appeal on costs where the judge had found in favour of the claimant and had thus rejected the suggestion that the accident was staged. This was a case where the second defendant’s insurer put the claimant to proof and expressed “a number of significant concerns in relation to the parties and the claim intimated”. The defence was conducted on the basis that the accident had been staged in order to generate an insurance claim. In giving the lead judgment (with which Treacy LJ agreed), Lord Dyson MR said that although the concerns raised by the second defendant did not amount to an allegation, they came close to it. Lord Dyson MR commented that “although the terms of the pleaded defence are not relevant to the issues that have been raised in this appeal, I am bound to register my concern with the way in which what in substance is an allegation of fraud was pleaded”: . Davis LJ agreed that the costs appeal should be dismissed and added that possibly the second defendant’s pleaded defence could have raised its significant concerns about whether this was a staged accident as an initial holding defence, but it was a case pleaded on insinuation, not allegation.
“ … If the second defendant considered that it had sufficient material to justify a plea that the claim was based on a collision which was a sham or fraud, it behoved it properly and in ample time before trial so to plead in clear and unequivocal terms and with proper particulars. Thereafter the burden of proof would of course have been on the second defendant to establish such a defence.
 In the event, as I see it, the claimant was faced with a hybrid, he in effect being required at trial to deal with an insinuation of fraud without any express allegation to that effect pleaded. Realistically, the trial judge dealt with the matter in the round, concluding that the claim was not fabricated or fraudulent and that the accident had not been staged. But this sort of pleading should not be sanctioned.”
- Unfortunately, we do not know the state of the pleadings in Hussain. However, the concern expressed by Lord Dyson MR and the obiter remarks of Davis LJ in that case should not, in my view, be read as casting doubt on well-established authorities such as Kearsley v. Klarfeld  EWCA Civ 1510;  2 All ER 303, , - and Francis v. Wells  EWCA Civ 1350;  RTR 13, , which establish that in this type of case (minor road vehicle accidents) it is not necessary for the defence to make a substantive allegation of fraud or fabrication, but it is sufficient to set out the detailed facts from which the court would be invited to draw the inference that the claimant has not, in fact, suffered the injuries or damage alleged. These authorities recognise the procedural and ethical inhibitions on advocates alleging fraud and the realities in this type of case for defendant insurance companies unearthing evidence of it.
- In this case the second respondent’s insurance company set out, in detail, the facts on which it would invite the court to draw adverse inferences: see paragraphs - above. Fraud was not alleged, and the judge was clear, in rejecting the second respondent’s suggestion of links between the appellant and the first respondent, Mr Lalik, that it was not good enough for the second respondent merely to imply fraud without pleading and proving it. Rather, as it was entitled to, the second respondent put the appellant’s credibility in issue and invited the court to draw adverse inferences through a range of pleaded facts. I can see no error in the way in which the judge approached the defence.
(a) Serious procedural error
- Mr Jenkins contended that the judge made a serious procedural error in failing to allow him to make general submissions on the case as a whole. He had raised the fact that the judge had not invited general submissions from either counsel at the start of the judgment, but the judge proceeded regardless. The upshot was that the judge did not, therefore, hear submissions from him in relation to the evidence and issues in the case generally, including the facts of the accident, credibility, causation and quantum. One point, which Mr Jenkins would have raised, was the consistency in the appellant’s account of the accident and the support given to it by Mr Lalik’s statement to Mr Titley, the investigator employed by the second respondent, in late September 2012. Submissions on such ground matters could well have made the difference. It is a basic and essential element of all civil trials that each party must have the opportunity to comment upon the evidence and to put forward submissions at the conclusion of the trial. Mr Jenkins submitted that this is particularly true in a case such as the present, where no oral evidence was called by the respondents and where the appellant therefore had no opportunity to advance its case in cross-examination.
- In my view, this ground does Mr Jenkins a disservice. As I commented in argument, Mr Jenkins should have been more robust at the hearing if he thought he was being deprived the opportunity of advancing the appellant’s case. As the hearing proceeded, it became clear to me that Mr Jenkins is sharp and more than capable of making his case before difficult judges. I am not suggesting that the judge conducting this trial is one. In fact, there was no complaint that Mr Jenkins was not given an adequate opportunity to make submissions on credibility as a whole; the complaint was that Ms Thompson did not have that chance. Mr Jenkins was clearly invited to make submissions on each of the matters troubling the judge about the appellant’s case, including the failure to call witnesses, the exaggeration of the appellant’s previous accident in November 2011, as well as what, if any, damage could have been sustained to the Seat motor vehicle as a result of the alleged index accident. In short, the judge gave Mr Jenkins the chance to answer each of the issues on which he ultimately found against him. The point about Mr Lalik’s interview with the investigator goes nowhere since, in the absence of Mr Lalik at the hearing, it was likely to be given little weight. This was a fast track trial and, consistently with the overriding objection, the judge did nothing more than limit the submissions on each side to the points where he was against them. There was nothing wrong in doing this; indeed, it was the commendable course to take.
(b) Appellant’s previous claim
- Mr Jenkins next submitted that the judge made an error of law in incorrectly drawing an adverse inference from the fact that not all of the passengers in the appellant’s vehicle were present to give evidence at trial. This was in the context where he had effectively misdirected himself by referring to the case as effectively one of fraud. That was erroneous since the defence had not alleged fraud. Mr Jenkins submitted that the remit of the judge was to decide whether the appellant had satisfied the burden on him on the basis of the evidence he provided. There is no provision that allowed the judge to draw inferences from the absence of evidence, whether witness evidence or otherwise. The judge was therefore not entitled to draw them. In doing so, he made an error in law and his decision is therefore unsafe. To allow this course would be to reverse the onus of proof. It would open the door for insurance companies in any personal injury case to invite the court to draw adverse inferences to defeat claims by making scatter gun allegations without (to mix metaphors) pinning their colours to the mast.
- I do not share Mr Jenkins’s apoplectic vision so long as the circumstances in which adverse inferences can be drawn are limited. In the context of an appellant’s failure to call particular witnesses, the Court of Appeal in Benham Limited v. Kythira Investments Limited  EWCA Civ 1794,  approved the four principles set out in judgment of Brooks LJ in Wisniewski v. Central Manchester Health Authorities  PIQR P 324:
a) in certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action;
b) they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness;
c) in other words, there must be a case to answer on that issue;
d) if, on the other hand there is some credible explanation, even if it is not wholly satisfactory, the potentially detrimental effect of his or her absence or silence may be reduced or nullified.
- In accordance with these principles, it was open to the judge to find that in respect of three particular witnesses – the brother and the two friends – there was no credible explanation for their absences and a failure to at least provide a witness statement. It was obvious from the second respondent’s defence that the appellant’s credibility was very much in issue. The defence invited the mother and brother to litigate their inchoate claims. There was then the appellant’s evidence in cross-examination about the two friends, whose surnames he did not know, attending the scene of the accident to drive the family home and to collect the vehicle. There was a case for the appellant to answer in respect of those matters, yet he offered no proper explanation as to why the two friends did not give evidence and the only explanation provided for his brother not giving evidence was that he was in Pakistan. In these circumstances, the judge was perfectly entitled to draw inferences.
(c) Previous accident
- Mr Jenkins’s third point was that the judge made an unsustainable finding of fact in concluding that the appellant had grossly exaggerated a previous personal injury claim. That was not a matter before him, and the second respondent had made no positive pleading in relation to it. Alternatively, the appellant was not cross-examined as to how long he had played football or the extent to which his injury allowed him to play. There was also no medical evidence before the court as to whether the appellant playing football was consistent with the injuries that he alleged that he had sustained. Further, there was no evidence as to the amount of money that the appellant received as a result of his claim, or the circumstances in which he received that money. The judge’s finding of fact was unsustainable in the absence of such evidence, and his use of this finding in assessing the credibility of the appellant rendered his decision unsafe.
- These submissions have to be considered against the backdrop of the realities. The judge did not decide that the present accident did not happen, that it was staged or that the appellant was not injured. It was a limited finding about the previous accident. In the report from the previous accident, it will be recalled that the appellant told Dr Malik that he went to see his GP three times following the previous accident on 12 November 2011; he purported to have severe restrictions at the date of the examination in January 2012 and referred to the difficulty with washing and dressing himself as well as household chores; he informed Dr Malik that he had not had any relevant injuries in the past; and, based on that information, Dr Malik suggested that the appellant’s symptoms would fully recover after a period of 10 to 12 months. In fact the appellant had only been to his GP on one occasion following the previous accident; he had been playing football the day before his attendance at the GP surgery on 18 November 2011; he had had another road traffic accident in 2009 which had caused him injuries but he did not inform Dr Malik and he told Dr Freij who examined him in respect of the injuries sustained in the index accident that he had fully recovered from symptoms relating to the 2011 accident, prior to the index accident in July 2012 (and that therefore the 10 to 12 month prognosis given by Dr Malik was incorrect). During cross-examination, he accepted that he had been playing football after the November 2011 accident, but rather unbelievably suggested that he was doing that because it made him better.
- Given all this it was, in my view, open for the judge to conclude that the appellant had misled Dr Malik and that the report of 12 February 2012 was “materially false“. There was other information, not before Dr Malik but brought out in cross-examination, which the judge could use to conclude that the appellant had grossly exaggerated his injuries when the medical report was compared with his medical records. I accept Ms McKinlay’s submission that this was a matter relevant to the appellant’s overall credibility and a finding which the judge could make, not least since that claim had been settled without a trial. The judge’s point was that the appellant had misled the medical expert in respect of that previous claim and the claim had been settled for an unknown amount on the basis of that report. Even if I were inclined to disagree with the judge’s conclusion, it is not open for me on an appeal to interfere: Assicurazioni Generali v. ARIG  1 All ER (Comm) 140.
(d) Damage to the appellant’s vehicle
- The appellant’s final ground is that the judge made an unsustainable finding of fact that little additional damage had been caused to the appellant’s vehicle in the index accident. The judge drew an inference from the failure to make the vehicle available for inspection, yet the appellant’s evidence was that he did not know about this. Notwithstanding the judge’s description of his determination as an adverse inference, Mr Jenkins submitted that the judge actually made a finding of fact that little or no additional damage was caused to the appellant’s vehicle in the index accident. Yet the appellant received a cheque for only £1,071.60 for the damage to his vehicle after the accident on 12 November 2011, while the damage caused to his vehicle in the index accident was sufficient for the vehicle to be written off. Even if the judge chose not to accept the appellant’s evidence as to the damage caused to his vehicle in the respective accidents, Mr Jenkins submitted that there was clear documentary evidence that notable further damage was caused in the index accident. The judge’s finding of fact was therefore unsustainable. In any event, there is no provision allowing the judge to draw this type of inference and he made an error in law in doing so.
- The evidence before the judge from HTV assessors was that the main impact of the previous accident of November 2011 was the O/S/R and O/S/F. In cross-examination the appellant said that photographs may have been taken at the time of that inspection. The report from Laird Assessors after the index accident seems to have been prepared without their being told that there was a previous accident involving the vehicle in November 2011 or that the appellant had not had his vehicle repaired following it. That report recorded damage to the O/S/R and the O/S/F door, in other words, on its face similar to the damage identified in the 2011 report. The second respondent raised, in its defence, that it was the same impact area in the two accidents. Further, the defence set out in some detail the chronology of attempts to inspect the Seat, as well as exhibiting documentation in respect of that. The appellant’s explanation was that he did not know his solicitors were refusing inspection. Against the background, it was open to the judge to find that the appellant had not proved that the damage evidenced in the Laird Assessors’ report was occasioned as a result of the index accident. He was entitled to draw the inference – it was not a finding of fact, as he made clear – from the refusal to allow inspection and the engineering evidence that the damage suffered in the 2011 accident was very similar to the damage suffered in the 2012 accident, and that there was no or possibly negligible damage from the 2012 accident. There is no way I can interfere with the judge’s finding that the appellant had failed to prove his case on this particular issue.