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Francis & Ors v Wells & Churchill Insurance Co Ltd, Court of Appeal, 19 December 2007

11 January 2008
The issues

Road traffic – fraud – whether accident made up – Judge failing to consider impression of evidence as a whole.

The facts

The First, Second and Third Claimants were allegedly injured in a road traffic accident in which Donna Wells was the driver and the three Claimant’s passengers. The accident occurred when Ms Wells allegedly collided with a vehicle driven by Mr Jose Senghore. Churchill alleged that the accident had not happened. They relied on the fact that one of the Claimants, Mr Reeves, had been involved in two other accidents, also involving Mr Senghore, in the 11 months up to the date of the accident. They said that this could not have been accidental or by chance. The first accident occurred when Mr Reeves was the driver of one car, Mr Banjaky, the driver of the other car and Mr Senghore, a passenger in Mr Banjaky’s car. The other took place with Mr Reeves as driver and Mr Senghore as the driver in the other case. The Judge found that the evidence was unsatisfactory but could only be support for a conspiracy if there was other cogent evidence and found that Churchill’s case of fraud and conspiracy was not made out. The Judge had reached his conclusion by weighing the evidence of each witness and the circumstance of each individual accident. Churchill appealed on the basis that the Judge had underestimated substantially the effects and significance of the alleged coincidence of the three accidents and, in particular, criticised the Judge’s use, in several places, of the proposition that something which might support their case was not enough in itself, suggesting the Judge was taking individual bits of evidence one by one rather than considering their effect overall in combination.

The decision

The Judge, although a very experienced one, had failed to take a crucial step in his assessment of the evidence. He should have looked at it as a whole and considered whether the combined effect of the striking coincidence of incidents involving Mr Reeves and Mr Senghore and all the difficulties and inconsistencies in the evidence of the witnesses was sufficient as a whole to satisfy a claim was not genuine, or at least to show that the Claimant’s cases were not proved on the balance of probability. The Judge failed at any point to step back from the detail of the evidence and review the impression that it left on him as a whole. Rather, he had, in the course of reviewing the evidence of the successive witnesses, dealt with their evidence one by one and in turn relegated each of the serious problems in their evidence to a subsidiary role which, in his view, was potentially corroborative, but not in itself probative. The Judge had also been wrong to proceed straight from the proposition that the Defendant had not made out its claim of an invented accident to the conclusion that the Claimants had proved their claims on the balance of probability. This might only be a theoretical distinction but, even if the case was not one of fabrication, it remained for the Claimants to make out their case of negligence and damage resulting from it and, in the absence of findings of fact, showing the basis on which the Judge found in favour of the Claimants it was not clear how he had reached that conclusion.

Appeal allowed. Case remitted for re-Trial.

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