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Owens v Noble, Court of Appeal, 10 March 2010

19 March 2010
The issues

New evidence – road traffic – re-Trial – fraud – procedure to be applied where evidence suggested the Judge had been deliberately misled.

The facts

The Claimant, Mark Noble, was seriously injured when his motorcycle collided with a car driven by Martin Owens. Liability was admitted and damages assessed in 2008 in the sum of £3,397,766.49. At the Assessment the Judge had been presented with a Claimant who was dependant on crutches and a wheelchair and would never work again and would require a good deal of assistance with daily living. The Judgment was satisfied by insurers. In the Autumn of 2008 insurers received confidential information to the effect that the Claimant was not as seriously disabled as he had claimed. They had him filmed. He was filmed for 7 occasions, each time for several hours. He was seen walking about without the aid of crutches or a stick. He drove a dumper truck. He sawed wood. He was seen to stretch and bend without difficulty. Insurers, taking the view that Mr Noble had deliberately misled the Court, applied for an injunction restraining him from spending the rest of his damages. The injunction was granted in respect of £2.25million. On the insurer undertaking to file an Application to Appeal out of time, relying on the fresh evidence of the films. The Claimant denied that he had deceived the Court saying that he had good days and bad days and could only do the things he had been shown doing on the good ones.

The decision

There was an inconsistency between two lines of authority. Ladd v Marshall suggested 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 re-Trial. That line of authority suggested that that should be done even if the new evidence suggested that the Court had been deceived.

On the other hand, Jonesco v Beard suggested that where there was deceit alleged, the proper course was to allow the party which alleged it had been deceived to start a new action.

The true principle was to be derived from the decision of the House of Lords in Jonesco, namely that where fresh evidence was adduced in the Court of Appeal intended to show that the Judge at first instance had been deliberately misled, the Court would only allow the Appeal and order a re-Trial where the fraud was either admitted or the evidence of it incontrovertible. In any other case the issue of fraud had to be determined before the Judgment of the Court below could be set aside. There might be exceptions to that general rule as, for example, where there would be no injustice and good policy ground for ordering a re-Trial.

In this case the video evidence was sufficiently cogent that it was possible that a Judge would find that the Claimant had deceived the Court. It was not incontrovertible however and it was contested. It would be wrong and unfair for the Claimant for the award to be set aside unless and until fraud had been proved.

The older cases suggested that where there was an issue of fraud to be tried, that had to be done by starting a new action. In this day and age that should not always be necessary. The issue could be done by the Court of Appeal referring the Trial of the fraud issue to a High Court Judge, pursuant to CPR 52.10(2)(b) (this is a Rule giving the Appeal Court power to “refer any claim or issue for determination by the lower court”). Provisionally, and subject to the views of the parties, it would also be appropriate for the referred issues to be tried by the original Trial Judge who would no doubt have a good recollection of the evidence when his memory was refreshed.

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