Singh and others v Habib and another 12.04.11

On 1 May 2008, the Claimants alleged they were passengers in a vehicle driven by Mr Habib, when Mr Habib collided with a stationary vehicle, the identity of which was never revealed, and that as a result they suffered injuries. They claimed it was a coincidence that, later that day, Mr Habib was involved in a further accident whilst driving the same vehicle. Mr Habib did not give evidence at the trial, at which District Judge Barraclough, not without hesitation, found in favour of the Claimants, having been impressed by the evidence of the Second Claimant. After the judgment:

  • Mr Habib gave a statement to an enquiry agent saying that the alleged accident never took place.
  • The enquiry agent was also advised by a woman called Vicky that Mr Habib had been promised money by the Claimants.
  • It was established through Facebook that a claims company involved in the claim, Advanced Claims had the same telephone number as Mr Habib.
  • Statements were given by the First and Third Claimants in relation to the time at which they had contacted Advanced Claims after the accident, which had unsatisfactory features.

The Defendant sought leave to adduce the evidence obtained by the enquiry agent and the fresh evidence about the telephone number. At first instance, the application to admit new evidence was rejected by His Honour Judge Grenfell.

Held

The new evidence was admitted and the Court of Appeal directed that there should be a retrial before a circuit judge. Sir Anthony May stated that CPR 52.11(2) provides that “unless it orders otherwise” an appeal court will not receive oral evidence or evidence which was not before the lower court. However, case law indicates that the “special grounds” set out in Ladd v Marshall [1954] remain relevant: (1) the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence would probably have had an important influence on the result of the case; and (3) the evidence must be apparently credible. In this case there was significant new evidence which cast suspicion on the whole basis on which the claims were advanced. In addition, there was widespread concern about fraudulent cases of this kind and there was a strong public interest in a full investigation of all the evidence.

Comment

This case highlights the extent of the courts' discretion to admit new evidence under CPR 52.11(2). It is particularly noteworthy, as Mr Habib retracted the statement he provided to the enquiry agent (which led the Court of Appeal to conclude that his evidence could hardly be regarded as credible) and the evidence tying Mr Habib’s telephone number to Advanced Claims had been available when the trial had taken place. Notwithstanding those apparent weaknesses, public interest appears to have been enough to convince the Court that the new evidence should be admitted.

Our experience confirms the extent of the courts' discretion. The writer has dealt with a claim where a retrial was ordered to allow fresh evidence to be admitted that the Claimant and his witness were known to each other, contrary to the case put forward at trial. This led to the dismissal of the claim and a costs order against the Claimant.

Those with an interest in fraud issues will also want to read our report of the Court of Appeal decision in Zurich Insurance Company plc v Hayward [27.5.11], where it was held that Zurich can proceed with an action alleging that the settlement of an earlier claim was obtained by fraud.