PROVING THINGS 83: WHEN A DEFENDANT DOES NOT GIVE EVIDENCE, ADVERSE INFERENCES CAN BE DRAWN: STAGED CRASH ESTABLISHED

In UK Insurance Ltd v Gentry [2018] EWHC 37 (QB) Mr Justice Teare considered what inferences can properly be drawn when a defendant, accused of dishonesty, does not give evidence.

KEY POINTS

• The claimant brought a case in deceit – alleging the claimant had “staged” a crash against its insured.
• It transpired that the claimant and the insured were good friends (and had been running together the day before the accident).
• The defendant called a witness but elected not to give evidence himself.
• The judge held that the absence of evidence from the defendant meant “strengthened the claimant’s case”.
• The claimant established the case based on deceit

THE CASE

The claimant insurance company sued the defendant. It was alleged that the defendant, Mr Gentry,  had fraudulently staged an accident with a Mr Miller who was insured by the defendant.

THE PROCEDURAL HISTORY

The case has a long procedural history. In Gentry v Miller & Anor [2016] EWCA Civ 141 the Court of Appeal refused to set aside a default judgment that Mr Gentry had obtained.  However (it transpires) that enforcement of those proceedings were stayed on the grounds that the insurer commence an action seeking damages for deceit. (In the event the costs orders in those proceedings, totalling over £205,000,  remained stayed, the insurer recovered its initial outlay of £19,179 plus interest and costs).

THE EVIDENCE IN THIS ACTION

The claimant (insurer) called evidence from its solicitor and an investigator. The claimant’s evidence was not challenged.

THE DEFENDANT’S EVIDENCE

The central issue here is that the defendant did not give evidence.

“Discussion

1. 1. In the present case the contemporaneous documents (the invoices, the damage report on the Range Rover, the transcript of the telephone conversation between Mr. Miller and the Claimant on 18 March 2013 and the proof of payments by the Claimant) show or suggest the following:

(i) Mr. Miller promptly reported the collision on 18 March 2013. His car was recovered by Green Flag and taken to NCR Bodyshop who must have examined the car and advised the Claimant that it was appropriate to pay Mr. Miller the value of the car. There is no suggestion that Green Flag or NCR Bodyshop saw anything to suggest that there had been no collision. If there had been the Claimant would have been expected to adduce evidence of such concerns from NCR Bodyshop and it has not done so.

(ii) Mr. Gentry’s car was recovered on the instruction of Mr. Ebbs by P. S. Auto’s. The damage was inspected by Assess Direct on 26 March 2013 and their report enabled the Claimant (after some delay) to pay Mr. Gentry the value of his car. Again there is no suggestion that Assess Direct saw anything to suggest that there had been no collision. If there had been the Claimant would have been expected to adduce such evidence from Assess Direct and it has not done so.

1. 1. Thus the contemporaneous documents are at least consistent with there having been a collision on 17 March 2013. Further, what Mr. Gentry told Dr. Tidy as to his injuries was consistent with the collision he described to the doctor. However, it has been the suspicion of the Claimant since 2014 that the collision was staged. The contemporaneous documents are consistent also with a staged collision; either in circumstances where Mr. Gentry’s car was already damaged or in circumstances where neither car was not already damaged.

   2. There is, in my judgment, cogent circumstantial evidence that the collision was staged: (i) Mr. Gentry and Mr. Miller were friends at the time of the collision; (ii) neither Mr. Gentry nor Mr. Miller informed the Claimant that they were friends; and (iii) when the Claimant discovered that they were friends Mr. Gentry denied that that was the case and told the Claimant, untruthfully, that they had become friends after the collision.

   3. Of course it is possible for two friends to suffer a collision when driving their respective cars. It would however be a striking and unlikely coincidence. Another explanation for the collision is that the two friends had staged the collision; that would explain the apparent but unlikely coincidence.

   4. That explanation gains support when it is born in mind that when Mr. Miller reported the collision on 18 March 2013 he made no mention of the fact that the driver of the car with which he had collided was a good friend of his with whom he had been running only the day before. Mr. Miller gave every impression in his telephone call on 18 March 2013 that he did not know the other driver. He referred to him as “the bloke I hit” and that he only knew his name, address and telephone number because he had written it down on a piece of paper after the collision. Similarly, when he spoke by telephone to the Claimant (or its associated company) on 19 June 2013 he said that he seen Mr. Gentry in the supermarket without disclosing that he in fact knew him very well. The fact that Mr. Miller sought to hide his friendship with Mr. Gentry from the Claimant suggests, at the least, that he knew that knowledge of their friendship would arouse justifiable suspicions in the mind of the Claimant as to the genuineness of the alleged collision.

   5. The same can be said of Mr. Gentry. Although he did not say anything in his RTA form which conveyed the impression that the driver was a stranger to him he failed to disclose that the driver was in fact a friend of his. He had the opportunity to disclose that fact in his RTA form (either in Section G – brief description of the accident – or Section M – other relevant information) but he did not do so. Although he was not specifically asked in the form whether he knew the driver his failure to mention his friendship suggests, when one bears in mind that Mr. Miller very clearly hid his friendship from the Claimant, that he, like Mr. Miller, knew, at the least, that disclosure of that fact would arouse justifiable suspicions as to the genuineness of the alleged accident.

   6. When in February 2014 the Claimant learnt of the friendship between the two drivers Mr. Gentry, in his witness statement dated 15 March 2014, chose to lie and to deny that the friendship had pre-dated the collision. That lie suggests that Mr. Gentry was very keen indeed to dissuade the Claimant from believing that he and Mr. Miller were friends before the allege collision.

   7. Does that lie support the Claimant’s claim ? That depends upon whether he lied for an innocent reason, as he suggests, not to slow down the payment of a genuine claim (in circumstances where he had incurred hire charges of in excess of £50,000), or because he feared that knowledge that he and Mr. Miller were friends would reveal to the Claimant that the collision was not genuine because it was too much of a coincidence to be true. In short, was the lie told to “mask guilt or fortify innocence”; see R v Lucas [1981] QB 720 at p.724, The Grecia Express [2002] 2 Lloyd’s Reports 88 at p.119 col.2 and The Atlantik Confidence [2016] 1 Lloyd’s Reports 525 at paragraph 301.

   8. If Mr. Gentry had not revealed the fact of their friendship in March 2013 for an “innocent” reason one would have expected Mr. Gentry to admit the relationship when the allegation was put to him in March 2014. But he did not. In circumstances where Mr. Miller had clearly hidden their friendship in March 2013 I consider it very likely indeed that Mr. Gentry lied in March 2014 because he feared that the fact of their friendship prior to the collision would show that the collision was not genuine. I therefore consider the lie to be evidence of a staged collision.

   9. In addition, there is the circumstance that Mr. Voller gave evidence that he was unaware that the driver of the other car was a friend of Mr. Gentry’s. He said that they did not talk about the accident when driving home. If the collision between the two cars was a genuine accident it is, as I have already said, inconceivable that that was not mentioned by Mr. Gentry to Mr. Voller either at the scene or when they drove home. Why did Mr. Voller say that he was not aware that the driver of the other car was a friend of Mr. Gentry’s ? In circumstances where Mr. Miller hid the friendship from the Claimant and where Mr. Gentry denied the friendship even after it had been discovered by the Claimant it appears to me that the only realistic explanation is that Mr. Voller was privy to the plan to stage an accident and feared that admitting that he knew of the friendship would in some way undermine Mr. Gentry’s claim.

   10. Thus all three persons who were present at the time of the alleged collision have, in their different ways, been reluctant to admit that the two drivers were friends.

   11. The fact that the two drivers were friends and the circumstance that each of the persons present at the time has been reluctant to disclose that friendship are matters which, in my judgment, cogently suggest that the collision was staged. In addition there is the odd and unexplained circumstance that Mr. Gentry made no claim on his own insurance policy. Form RTA 1 stated that that he had comprehensive insurance but that he was not making a claim on it. This is not a factor which, by itself, would suggest that the accident had been staged but, when taken together with the fact that the two drivers were friends and that all persons present at the scene have been reluctant to disclose that information, lends support to Claimant’s case; cf The Atlantik Confidence at paragraph 299. Whilst it is possible that he did not want to lose a “no claims bonus” it must be borne in mind that his car had suffered substantial damage. His failure to claim on his own policy in respect of that substantial damage suggests, in my judgment, that Mr. Gentry knew that he would be unable to recover on his own policy for the substantial damage which his car had, at some stage, suffered.

   12. Mr. Grant also relied upon the circumstance that although Mr. Gentry was offered a free hire car by the Claimant on 24 March 2013 he in fact hired a car himself at considerable cost. I agree that that is odd and unexplained but I am not persuaded that this adds to the case against Mr. Gentry. It is to be noted that he entered into the hire agreement on 26 March 2013. Perhaps he misunderstood the letter of 24 March 2013. Mr. Grant also relied upon the fact that the registration number of the Range Rover was changed on 2 May 2013 and that the vehicle was put back on the road with a new MOT certificate on 11 June 2013. Again, whilst these matters were unexplained I was not persuaded that they added to the Claimant’s case.

   13. Two further matters are consistent with the Claimant’s case. First, Mr. Gentry’s Range Rover had only travelled 807 miles between 3 May 2012 and 11 June 2013. That is consistent with it having been off the road or used very sparingly as a result of damage for a substantial period. Second, Mr. Miller’s Peugeot was an old car. It had first been used in 1995 and by 10 April 2012 it had travelled 152,235 miles. It was worth very little; Mr. Miller received £225 in respect of it. Its MOT expired on 10 April 2013 and was not renewed. These matters are consistent with a staged collision between the Range Rover, already damaged, and the Peugeot, receiving some damage in the collision.

   14. It may be said that to stage a collision and make a false claim requires boldness on the part of the fraudster. But Mr. Gentry has shown himself to be a bold liar. When the Claimant discovered the truth of his friendship with Mr. Miller he did not merely deny the allegation but gave a detailed account of how they had become friends after the accident as a result of Mr. Miller telling him of the tragic death of his son (at the scene of the accident) and how Mr. Gentry had supported a charity which supported families affected by Sudden Infant Death Syndrome. It was true that Mr. Miller had suffered the tragic death of his son but Mr. Gentry knew of that in 2011. He used that information to construct a particularly bold lie.

   15. Mr. Grant on behalf of the Claimant invited the Court to draw adverse inferences from the failure of Mr. Gentry to give evidence (or to call evidence from Mr. Miller, Mr. Ebbs, and Mr. Toms). The circumstances in which inferences may be drawn have been summarised by the Court of Appeal in Wisnewski v Central Manchester Health Authority [1998] PIQR P324 at p.14 in these terms:

“(1) 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.

(2) If a court is willing to draw such inferences, 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.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness’s absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”

1. Thus, in order to lay the foundation for the drawing of inferences in the present case there must first be “some evidence, however weak …….on the matter in question”. In the present case that means that the Claimant must adduce some evidence which suggests that Mr. Gentry’s claim that there had been a collision in the circumstances which he described was untrue and deliberately so. It is plain from my review of the evidence so far that there is such evidence, primarily, the circumstance that the driver of the vehicle which crashed into his car was someone whom Mr. Gentry knew very well and with whom he had been running the day before the suggested collision. That was an unlikely coincidence. I note in this regard the evidence of Ms. Khatun, the solicitor at Keoghs LLP with conduct of this claim. In her witness statement dated 26 February 2014 in support of the Claimant’s application to set aside the judgment in default she said that the Claimant’s allegation of fraud “is based primarily on the fact that [the Claimant] is now in position to demonstrate that [Mr. Gentry] and [Mr. Miller] are known to each other and were known to each other prior to the alleged accident”; see paragraph 17 of that witness statement and the draft Defence at paragraph 4.

2. In these circumstances the fact that Mr. Gentry chose not to give evidence about the collision (and thereby refused to submit himself to being cross-examined on the subject) serves to strengthen the Claimant’s case. Mr. Gentry did not in terms explain why he chose not to give evidence. He had said in a letter to the court dated 14 December 2017 that he had “offered to wave the white flag in the proceedings in relation to the Tort of Deceit” which he explained to me at the beginning of the trial did not mean that he admitted liability but that he simply wished to get the matter over quickly. It may therefore be that he chose not to give evidence because he wanted the trial over quickly. However, if this was his explanation I am unable to accept it. He in fact adduced evidence in support of his defence from Mr. Voller and thereby lengthened the hearing. In circumstances where he knew that there was an application to commit him for contempt it is remarkable that, if his account of the collision was true, he did not wish to tell the court that on oath from the witness box. There is therefore a cogent argument for inferring that he did not give evidence because he feared that he would not be able to give an account of the collision which withstood cross-examination. However, Mr. Gentry was a litigant in person. It is plain from his letter to the court that he was concerned at the prospect of losing his liberty. It is possible that he thought that in circumstances where he had already, as he put it, pleaded guilty “for the contempt of court charge” his best interests were served by taking no part in the trial. Although this explanation also sits uneasily with his decision to call Mr. Voller to give evidence the possibility that it explains his absence from the witness box is just about credible. To that extent the extent to which his absence from the witness box strengthens the Claimant’s case is reduced, though not nullified.

3. I was also asked to draw an adverse inference from Mr. Gentry’s failure to adduce evidence from Mr. Miller, Mr. Ebbs and Mr.Toms.

4. Mr. Miller was not traced by the Claimant in December 2016. He was not found at any of the addresses linked to him. Given their friendship it is possible that Mr. Gentry had the means to contact Mr. Miller and to adduce evidence from him. His failure to do so is therefore some additional support for the Claimant’s case. But where it is also possible that he cannot be traced that support is limited.

5. Mr. Grant said that adverse inferences should be drawn from Mr. Gentry’s failure to call either Mr. Ebbs or Mr. Toms in order to clear up uncertainties as to who recovered the Range Rover and why the damage was surveyed at unit no. 6 rather than no. 32. However, it is not all clear that Mr. Gentry would have thought it necessary to call either gentleman to give evidence about what they recalled as to the movements of the Range Rover between 17 and 26 March 2013. The contemporaneous documents, together with the evidence obtained from Mr. Ebbs in December 2016, show that what probably happened was that the Range Rover was collected from the site of the alleged collision on 17 or 18 March 2013 by Mr. Toms (P.S.Auto’s) and taken to Mr. Ebbs’ unit no.32 (Perfect Match) and that it was surveyed by Assess Direct on 26 March 2013 at unit no.6 where P.S.Auto’s gave an estimate of the repair costs. Thereafter it probably returned to unit no 32 until about 6 April 2013. I am not persuaded that any adverse inference should be drawn from the failure of Mr. Gentry to call either Mr.Ebbs or Mr. Toms. Had the Claimant wished to add to what the documents suggested the Claimant could also have called them.

6. In cases of this nature it is necessary to stand back and have regard to the whole of the evidence. I have sought to do so and to take the story as a whole. Having done so I am persuaded that the accident was staged. I have asked myself whether there is a real or substantial possibility that the collision was genuine which the Claimant has been unable to exclude. Having considered all the circumstances of this case I do not consider there is. The only credible explanation for the steps both drivers took to hide their friendship from the Claimant is that they knew that it was a staged collision and that to reveal that they were friends would give the game away. Also, if the collision had been genuine Mr. Gentry would surely have told Mr. Voller at the time. Mr. Voller’s denial that Mr. Gentry did so is a cogent indication that he was part of the conspiracy.

7. The Claimant does not have to establish a motive for the alleged fraud if the facts are sufficiently unambiguous. In my judgment they are. But if a motive is required it is that Mr. Gentry wished to recover something in respect of the substantial damage carried by his car (and which had led to it being little used in the previous year) and, for whatever reason, was unable to recover from his own insurers in respect of that damage. Mr. Miller was willing to assist his friend because his vehicle was very old and worth very little. It is likely that Mr. Voller attended so that he could be an “independent witness” to the collision.

8. For these reasons I have the required very high level of confidence that the Claimant’s allegation is true and I am not left in doubt as to what happened. The Claimant is therefore entitled to judgment on its claim.”