Owens v Noble

Where fresh evidence raises a contested allegation that a party deliberately misled the trial court, an appellate court should not set aside an established damages award or order a retrial unless the fraud is admitted or incontrovertibly proved. The fraud issue must first be determined fairly and on properly tested evidence.

A later recovery better than that predicted at trial does not itself justify reopening a lump-sum award. Subject to the CPR, the appellate court may refer the fraud issue for trial, preserving the award unless fraud is proved.

The respondent, seriously injured in a road collision for which the appellant admitted liability, received damages of £3,397,766.49 assessed by Field J in March 2008. The award reflected an expectation of severe and continuing disability.

After judgment was satisfied, the appellant’s insurers obtained surveillance films showing the respondent undertaking activities apparently inconsistent with the disability case advanced at trial. The respondent maintained that the activities occurred on good days and reflected some genuine improvement.

The appellant sought to adduce the fresh evidence and to have the damages assessment set aside for retrial. The central issue was whether a contested allegation that the claimant had fraudulently misled the trial court permitted that course, or required fraud first to be tried and proved.

1. Appeal allowed in part. Lady Justice Smith, with whom Lord Justices Elias and Sedley agreed as to the disposition, held that the damages award could not be set aside merely because the fresh evidence made fraud a realistic possibility. The evidence was contested and fell far short of being incontrovertible.

2. The governing principle derived from Jonesco v Beard [1930] AC 298 was that a judgment allegedly procured by fraud should not be displaced until fraud has been properly determined. The ordinary Ladd v Marshall [1954] 1 WLR 1489 criteria for fresh evidence do not remove that safeguard where the proposed retrial itself could reduce damages despite a finding that no fraud occurred.

3. The principle of finality was especially important in personal-injury quantum. A later improvement beyond the trial prediction, without fraud, is an ordinary consequence of assessing future loss once and for all. It does not justify reassessment: Mulholland v Mitchell [1971] 1 AC 666.

4. The court held that a separate fresh action was not invariably required. Under CPR 52.10(2)(b), it could refer the discrete fraud issue to a High Court judge. If fraud were rejected, the original award would stand. If it were proved, the judge should reassess damages. The court indicated that Field J might be the appropriate judge, subject to submissions.

• Court of Appeal (Civil Division): Allowed the appeal in part and directed a trial of the fraud issue: [2010] EWCA Civ 224.

• High Court, Queen’s Bench Division: Field J assessed damages at £3,397,766.49 inclusive of interest on 11 March 2008. Liability had been admitted.