Francis & Ors v Wells & Anor

Where a claimant’s account is materially inconsistent and a defence alleges a fabricated road traffic accident, the court must assess the combined effect of all the evidence. It should make clear findings of fact and decide whether the claimant has proved negligence and resulting loss on the balance of probabilities.

A defendant’s failure to prove fraud does not itself establish the claimant’s case. The legal burden remains on each claimant, although an allegation of fraud may place a substantial evidential burden on the defendant. Evidence described as corroborative is necessarily probative to some extent and must not be wrongly discounted in a piecemeal assessment.

Three passengers claimed damages for injuries allegedly sustained when Donna Wells negligently drove into the path of another vehicle. Churchill Insurance Company Ltd, her insurer, had initially accepted liability but withdrew that acceptance after discovering that Tyrone Reeves and the other driver, Jose Senghore, had been involved in two further accidents within an eleven-month period.

His Honour Judge Tetlow, sitting in the Oldham County Court, found the evidence of the claimants and Ms Wells unsatisfactory but held that the insurer had not established fraud or conspiracy. He ordered damages to be assessed. The insurer appealed, contending that the judge had failed to evaluate the evidence cumulatively and had wrongly treated the absence of proved fraud as sufficient to uphold the claims.

1. Appeal allowed. The order for damages to be assessed was set aside and the action was remitted for retrial before a different judge.
2. The trial judge had identified serious inconsistencies in the accounts of all four material witnesses and the striking coincidence of three incidents involving Mr Reeves and Mr Senghore. He nevertheless treated each difficulty separately as no more than potentially corroborative of a conspiracy. That was an erroneous approach. The judge should have stepped back, evaluated the evidence as a whole, and decided what facts had actually been proved.
3. It was also wrong to hold that the circumstances of the March 2005 accident could have no bearing on the truth of the alleged February 2005 accident. Its evidential significance had to be assessed with the other coincidences and inconsistencies.
4. The legal burden remained on each claimant to prove, on the balance of probabilities, that the collision occurred through Ms Wells’s negligence and caused loss. A fraud allegation created a substantial evidential burden for the insurer, but the insurer’s failure to prove a fabricated accident could not automatically establish the claimants’ positive case.
5. The judge’s lack of findings explaining which evidence was accepted, together with the misdirections in evaluating the evidence, meant that the issues had not been properly determined. The Court directed case management for a retrial; appeal costs were costs in the case and the first-trial costs were reserved.

• Court of Appeal (Civil Division): Allowed Churchill Insurance Company Ltd’s appeal, set aside the order of 8 March 2007, and remitted the case to the Salford County Court for a retrial before a different judge.
• Oldham County Court: His Honour Judge Tetlow ordered damages to be assessed in favour of the three claimants after rejecting the insurer’s allegation that the accident claim was fabricated.