Case Alert - [2016] EWCA Civ 764  

Whether judge had been entitled to hold insurance claim was fraudulent and to bar a party from hearing the evidence of another party

Armstrongs for appellants, Keoghs for respondents

At first instance, the judge held that the claimants' insurance claim was fraudulent. She also ordered that each claimant be excluded from court whilst the other was giving evidence. The claimants appealed. The Court of Appeal has now held as follows:

(1) The judge had not erred in failing to have regard to the Court of Appeal case of Hussain v Hussain and Aviva (see Weekly Update 38/12). That case may be of interest but it does not establish what inferences a court may draw where fraud is alleged but there is no direct evidence connecting the parties alleged to be in a fraudulent conspiracy: "what inferences are appropriate depends entirely on the particular facts of the particular case".

(2) However, the judge did not make sufficient findings, or provide sufficient reasoning, to substantiate the fraud finding which she made. Although the judge's conclusion that the claimants had failed to establish their claim for damages was allowed to stand, that alone did not justify a finding of fraud. Even a finding that the accident had not occurred at all would not have necessarily led to a finding of fraud. Accordingly, the appeal was allowed.

(3) The Court of Appeal found that there is no absolute requirement that, in order for a party to have a fair trial (in accordance with Article 6 of the ECHR), he or she must have the opportunity to be present personally throughout the entire hearing. Although it may be the starting point that a party should be present, there can be situations where he or she can be excluded e.g. due to unruly behaviour.

In this case, though, there had been no justification for excluding the claimant. Nevertheless, that was not automatically fatal to the fairness of the trial. Here, the claimants were on the same side and represented by the same counsel and were telling essentially the same story: "the first claimant did lose the opportunity to learn from observing the second claimant giving evidence what to expect when it came to his turn, but then someone has to go first in any event and a claimant will not usually have the opportunity to observe before giving evidence". Accordingly, a fair trial had taken place.