In Hussain v Hussain and Aviva UK Insurance Limited, the Court of Appeal (CA) allowed an appeal by the claimant against the first instance judge's finding that he was compliant in a fraudulent claim.
At first instance, the judge was asked to determine a claim brought by the claimant for damages arising out of a road traffic incident. The first defendant, who did not appear in the proceedings, was alleged to have collided with the car of the claimant. The second defendant, Aviva, insured the first defendant. Aviva put the claimant to proof that the collision had occurred and that the first defendant existed. The judge, after hearing mostly oral evidence, found that there had been an attempted fraud to which the claimant was party.
The trial judge's conclusion rested on two footings. First, the application of the rule "follow the money"; exemplified by the judge in that the collision only made economic sense if the claimant and first defendant were in concert. Secondly, the judge held that the claimant's credibility was "seriously damaged" by his medical records and the absence of any reference to the collision.
Delivering the leading judgment of the court, Lord Justice Davis took issue with both of the trial judge's conclusions that the claimant was complicit in the collision. Firstly, Davis LJ cast serious doubt on the judge's application of the rule "follow the money" finding that he knew: (a) not what the rule connoted; and (b) why it was a rule. Secondly, he did not find that the conclusive weight that the judge attributed to the absence of reference to the collision in the claimant's medical records to be of such significant weight to support the judge's finding of "total adverse credibility and a conclusion of fraud on the part of the claimant."
The nature of this case is unusual. Davis LJ was clearly apprehensive in overturning a trial judge's factual findings and conclusions. However he was sufficiently persuaded that the facts did not justify a finding of "fraudulent complicity" on the part of the claimant.