Civil evidence – Personal injury – Appeals – Fraud – Fresh evidence

Martin Raymond Owens v Mark Noble: CA (Civ Div) (Lords Justice Sedley, Elias, Lady Justice Smith): 10 March 2010

The appellant (O) appealed against a decision ([2008] EWHC 359 (QB)) awarding substantial damages to the respondent (N) for injuries suffered in a road traffic accident.

N was injured when his motorcycle was in collision with a car driven by O. O admitted liability and damages were assessed in the sum of £3,397,766.49 inclusive of interest. The basis of the award was that N’s mobility was severely restricted and would remain so; he was dependent on crutches and a wheelchair; he would never work again and would require a good deal of assistance with daily living. O’s insurers satisfied the judgment against him. Subsequently, the insurers received information to the effect that N did not appear to be as seriously disabled as he had claimed. They arranged to have him watched and filmed. N was filmed on seven occasions, each time for several hours. The insurers took the view that the picture presented on the films was so different from that presented at the trial that the only inference to be drawn was that N had deliberately misled the court as to the gravity of his continuing disabilities. They obtained a without-notice injunction restraining N from dissipating his damages and applied for permission to appeal out of time, which was granted. O submitted that in the light of the fresh evidence the award of damages should be set aside and there should be a retrial. N accepted that the fresh evidence of the films should be admitted but argued that O’s proper remedy in a case in which fraud was alleged was to commence a fresh action to set aside the original judgment.

Held: (1) There was an inconsistency between the two lines of authority on which the opposing parties to the appeal relied. There were cases which indicated that where fresh evidence was properly admitted and it appeared to the court that it might have had an important effect on the trial the right course was to send the case back for retrial, Ladd v Marshall [1954] 1 WLR 1489 CA and Roe v Robert McGregor & Sons [1968] 1 WLR 925 CA (Civ Div) considered. That should be done even if the new evidence suggested that a deceit had been practised on the court, Hamilton v Al-Fayed (No4) [2001] EMLR 15 CA (Civ Div) considered. On the other hand there was House of Lords authority that, where it was alleged that there was deceit in the court below, the proper course was to leave the aggrieved party to commence a new action, save where the Court of Appeal could determine the fraud issue itself because the fraud was admitted or the evidence was incontrovertible, Jonesco v Beard [1930] AC 298 HL followed. The House of Lords had since affirmed the view that it took in Jonesco, Kuwait Airways Corp v Iraqi Airways Co (No8) (petition for variation of order) [2001] 1 WLR 429 HL considered. As a matter of jurisprudence, Jonesco, as a decision of the House of Lords, was to be preferred. The true principle derived from Jonesco was that where fresh evidence was adduced in the Court of Appeal tending to show that the judge at first instance was deliberately misled, the court would only allow the appeal and order a retrial where either the fraud was admitted or the evidence of it was incontrovertible. Where the fresh evidence amounted to an allegation of fraud which was contested, the usual course should be to require the issue of fraud to be tried before the established judgment was set aside.

(2) In the instant case, the video evidence was sufficiently cogent that it was possible that a judge would find that N had deceived the court below. But it was far from incontrovertible and was hotly contested. Unless and until fraud had been proved, it would be wrong for the award of damages to be set aside, since that would be a breach of the rule that damages were to be assessed once and for all time, Mulholland v Mitchell (No1) [1971] AC 666 HL considered. However, it was not necessary to commence a fresh action to determine the fraud issue. The trial of the fraud issue could and should be referred to a judge pursuant to rule 52.10(2)(b) of the Civil Procedure Rules.

Appeal allowed in part.

Andrew Hogarth QC, Catherine Peck (instructed by Clarke Willmott) for the appellant; Clive Freedman QC, William Latimer-Sayer (instructed by RWPS) for the respondent.