PROVING THINGS 79: SOME THINGS JUST CAN’T BE A COINCIDENCE: A CAR CRASH OF A CASE

We have already looked today at the judgment in Liverpool Victoria Insurance Company Ltd v Yavuz & Ors[2017] EWHC 3088 (QB). However that judgment also contains a close and careful analysis of witness evidence.

“I start by asking myself this question: Might it be mere coincidence that over a two month period in the Autumn of 2011 the six drivers in the six alleged crashes were all victims of negligent driving in North London by six different middle-aged East European cleaners from Margate (or some other seaside town in the South East) who were many miles from home, driving old cars which had only just been insured TPF&T with LVI? The answer, obviously, is no”

THE CASE

The claimant insurance company were successful in bringing an action for contempt of court against nine defendants.   The claimant had the difficulty of having no first-hand evidence to show that claimants were fraudsters. However the circumstances were very much against the claimants.

THE JUDGMENT

1. The first notable feature of the case which bolsters the inference of fraud is the striking fact that the third and sixth crashes involved no less than six members of the same extended family being “victims” of two separate “accidents” in the space of just five weeks, both crashes involving East European cleaners from seaside towns in the South of England, and both exhibiting the other remarkable common features identified above. To suggest that this is mere coincidence would be stretching credulity to breaking point.

2. Secondly, there is evidence casting doubt on the bona fides of PVC, which goes beyond the false or questionable invoices to which I shall be making reference later. The evidence of Ms Crosland leads me to conclude that in or about 2012 someone on behalf of PVC told Companies House that the company was dormant in the relevant accounting period. Either those representations to Companies House were true, which would lend weight to the case that the PVC invoices relied on by the defendants are false and fraudulent; or the representations to Companies House were untrue, which would cast a shadow over the integrity of those in charge of the company. It is hard to see any intermediate position. It is not necessary to reach a definitive conclusion on these issues in order to rely on these points as a factor in the case against the defendants.

3. Further, LVI has, in my judgment, reinforced the inference of fraud by demonstrating links between addresses which, it is to be inferred, are not just coincidental and thus tend to incriminate some of the defendants. The first such link involves the Gulbudaks. An Equifax search conducted in January 2013 suggests that at the time his claim was brought Mr Salman Gulbudak and his sister Bahar were both resident at 31 Ordnance Road, Enfield. This is in the same road as the address given for Tonik Lackun, the registered keeper of the Peugeot at the time of the fourth crash (the one allegedly involving Mr Golding). This evidence has not been disputed by the Gulbudaks. Counsel for the defendants therefore went too far in submitting that LVI had failed to show any links between their clients and the fraudsters.

4. The second link by address is between the Kaya family and PVC. Today, Mr Kaya runs a kebab restaurant at 57 Devizes Road, Swindon, and on any view of the evidence he has done so for many years. In his witness statement of March 2014, Mr Kaya said that had had the business for 8 years. That would take his running of the business back to 2006. On their evidence, the other Kayas were helping Mr Kaya at the restaurant on the day of the second accident. The link with PVC comes from a company search report produced by an organisation called Duedil (which I take to be shorthand for due diligence). It records that (1) a man called Hasan Urger had been a director of a company called Beriwan Limited running a restaurant at 57 Devizes Road, Swindon for a period that would appear to have lasted up to 2007, thereby overlapping with the running of the business by Mr Kaya; and (2) on 1 July 2011, a matter of some ten weeks before the crash involving Mr Kaya, the same Mr Urger was registered as a director of PVC. LVI suggests these facts cannot be just coincidence; Mr Kaya and Mr Urger must know each other.

5. Mr Kaya denied this, and Mr Newman derided the suggestion. He pointed out that the records do not come from Companies House, but a third-party organisation. The records about Beriwan are confused and unreliable, and on a proper interpretation suggest that the company was out of business before 2007, he submits. Mr Kaya’s affidavit of July 2017 gave a different account of his connection with 57 Devizes Road, implying that his connection with that address only started in September 2010. In his evidence on this application he suggested that this was true and that the 2014 witness statement was mistaken in this respect, possibly because of translation problems. He has relied on a document of 28 September 2010 which records a licence for the transfer of the lease from his aunt to him, following the death of his uncle. In any event, submits Mr Newman, Mr Urger was registered as a director of PVC for 1 day only. The attempt to draw a link with Mr Kaya is fanciful or at best tenuous and unreliable.

6. My conclusion on this issue is that the link is genuine and meaningful. The Duedil records are coherent enough, in my view. The link between Beriwan, Mr Urger, and Mr Kaya would be a quite remarkable coincidence, if that is all it was. Mr Kaya’s evidence on this and other issues was evasive, inconsistent and unimpressive. At one stage, in evidence in chief, he accepted that he was working in the Swindon restaurant business in about 2008, or at the end of 2007. He claimed he had been working part-time for his uncle and aunt. They, he suggested, had owned the business for 2-3 years before the licence to assign, that is to say from about 2007. I reject that evidence. Mr Kaya was in my judgment playing a leading role in the restaurant business from 2006, as he suggested in his witness statement of 2014. Mr Urger was involved in the business at the same time. They must know each other. It is not just a coincidence that Mr Urger became a director of PVC not long before Mr Kaya had his “accident”. The link supports LVI’s case.

7. The discontinuance of the County Court claims is of course a further factor that, from an objective standpoint, lends strong support to the conclusion that the claims that were dropped were not genuine. No credible innocent explanation has been offered.

8. Turning to the defendants themselves, none of their evidence created any doubt in my mind about the right conclusions to draw. All presented in a somewhat wooden way, mainly addressing their answers to the ceiling, the walls, or the middle distance, rather than to me or (as is common) to Counsel asking the questions. They all had a rather flat affect, showing no real emotion. They used odd turns of phrase. When asked what they had to say to the suggestion that the accident had not happened, most responded in neutral tones on the lines of “That is your opinion” or “I disagree”. These are all factors on which I place some weight, but not too much. Reliance on witness demeanour is notoriously unreliable. The difficulties may be exacerbated by cultural and language differences. This is by no means the main reason for rejecting their evidence. The main reasons are the inferences identified above, and the lack of credibility of the substance of the defence evidence. I shall deal with the quality and content of each defendant’s evidence individually.”

Each defendant was found to be in contempt of court.