Uddin & Anor v Norwich Union Fire Insurance Society Ltd

A renewed application for permission to appeal should be refused where the proposed appeal has no reasonable prospect of success. A trial judge’s adverse credibility findings will not be displaced merely because one passage is inelegantly expressed, where the judge heard the evidence as a whole, examined the material evidence and explained what was accepted and rejected. A judge may place some reliance on evidence from a hostile witness when it is strongly corroborated. The judge should first hear submissions before permitting a party to treat a witness as hostile, but an error in that procedure will not justify permission where the outcome could not have been affected.

The claimants sought indemnity under a fire insurance policy for damage to their home, lost property and alleged expenditure on alternative accommodation after a fire. The insurer alleged that the alternative-accommodation claim was false and dishonest.

A Deputy High Court Judge dismissed the claim and gave judgment for the insurer on its counterclaim. The claimants challenged the judge’s credibility findings and his decision to allow the insurer to treat Mr Bailey as a hostile witness. Permission to appeal had previously been refused by Latham LJ. The Court of Appeal considered whether the proposed appeal had a reasonable prospect of success.

Disposition. Sir Swinton Thomas gave the first judgment, and Lord Justice Schiemann agreed. The renewed application for permission to appeal was refused, with no order for costs.

1. Credibility findings. The deputy judge’s statement that, once Mr Syed Uddin’s evidence was rejected, all evidence supporting the alternative-accommodation claim must also be untrue could have been expressed more carefully. It did not amount to a substantial error. The judge had heard the evidence as a whole, had formed an adverse view of Mr Syed Uddin’s evidence, and had gone on to examine most of the important evidence in detail, explaining why particular evidence was accepted or rejected.
2. Hostile witness ruling. The deputy judge was wrong initially to allow Mr Bailey to be treated as a hostile witness without first permitting the claimants’ counsel to make submissions. Counsel then interrupted the proceedings and made those submissions, after which the judge maintained his ruling. That was unfortunate, but it gave no realistic basis for a successful appeal. The judge was in any event entitled to treat Mr Bailey as hostile on the evidence and the conflicting statements.
3. Effect of corroboration and overall merits. Where evidence from a hostile witness is strongly corroborated by other witnesses, the judge may place some reliance on it. More importantly, rejection of the evidence of Mr Syed Uddin and Mr Zaidi left no realistic prospect that the claim could succeed. Even if Mr Bailey’s evidence had been excluded altogether, the judgment would have been unaffected. The judge was entitled to conclude that the claim was dishonest and dismiss it.

• Court of Appeal (Civil Division) — On 19 June 2002, Sir Swinton Thomas gave the first judgment and Lord Justice Schiemann agreed. The renewed application for permission to appeal was refused, with no order for costs.
• Queen’s Bench Division — On 28 February 2002, Judge Richard Seymour QC, sitting as a Deputy High Court Judge, dismissed the claim and gave judgment for the defendant on its counterclaim, with ancillary orders.
• Earlier permission stage — Latham LJ refused permission to appeal on 16 May 2002.