The Court of Appeal has ruled that a judge was wrong to exclude claimants from parts of their own county court hearing – but concluded it was still right their case was dismissed.
Two claimants brought the appeal following an order by HHJ Baucher to reject their claims and find they were either manufactured or fraudulent.
The two men had brought identical claims following an allegation that a car had been negligently driven into their motorcycles parked outside their home.
Baucher, sitting in Central London County Court in June 2014, had ordered that the first claimant be excluded from court whilst the other was giving evidence, saying it represented a fair balance of all parties’ interests.
In the Court of Appeal, they said this option was not open to the judge as they were not just witnesses but parties to the claims and had a right to be present for the whole hearing.
They also challenged Baucher’s finding of fraud and suggested the judge had given the ‘impression of having predetermined the result of the trial’.
In Da Costa & Anor v Sargaco & Anor, Lady Justice Black rejected that suggestion, but she reproached the judge for excluding claimants from court and finding fraud.
It was incumbent on the judge, said Black, to make clear findings on matters relevant to the fraud issue, but these were ‘by no means comprehensive’ and ‘not set out in any detail or reasoned through’.
Just because the claim was not proven did not mean a finding of fraud should automatically follow, added Black.
Black said the exclusion of both claimants during proceedings was enforced for ‘no good reason’.
‘The fundamental problem was that the judge did not take as her starting point that the claimants were entitled to be present throughout the trial, or, indeed, give any weight to this at all in her decision,’ said Black. ‘Her reasoning was sparse and gives little clue to her thinking as to how precisely the order would assist matters.’
Black added: ‘At the very least it was likely to leave the first claimant with a sense of injustice, and it risked the entire being impugned on the basis that the exclusion had rendered it unfair.’
Despite questioning the trial process and fraud finding, Black said neither was ‘automatically fatal’ to the whole trial.
Both claimants were represented by the same counsel, she concluded, and were telling essentially the same story based on witness statements they had filed.
Black said the claimants could not point to any part of the transcript where things might have been different had the first claimant been present to hear the other claimant’s evidence.
She allowed the appeal in relation to the findings of fraud, but otherwise dismissed it.
The order was amended to provide the payment of the insurer’s costs on a standard basis rather than an indemnity basis.
