Yechiel v Kerry London Ltd

When deciding whether a witness’s account is reliable, the court may test it against independently proved objective facts, contemporaneous documents, the witness’s motives and the overall probabilities. That approach is not confined to fraud cases. Several individually inconclusive matters may collectively justify rejecting the account.

The claimant alleged that he had notified his insurance brokers that valuable jewellery would be outside its approved safe-deposit location beyond the policy’s permitted period. He claimed that the brokers had failed to obtain an extension of cover. The brokers denied receiving the notification.

The court determined whether the letter had been sent and received before the theft, principally by assessing the witnesses’ credibility, contemporary documents and the surrounding probabilities.

1. The claim was dismissed. The court held that the letter had not been sent by fax or post on 6 August 2004 and had not been received by the defendant. The letter and two transmission reports were later fabricated.
2. The court applied the approach stated in Armagas Ltd v Mundogas S.A. (The Ocean Frost) [1985] 1 Lloyd's Rep 1 at 57, as approved in Grace Shipping v Sharp & Co. [1987] 1 Lloyd's Rep 207 at 215. The approach requires testing veracity against objective facts, contemporaneous documents, motives and overall probabilities.
3. That approach had wider application than fraud cases. The claimant’s inconsistent accounts, failure to produce originals, documentary inconsistencies and the improbability that both communications would have gone unrecorded were cumulatively compelling.
4. Sending and receipt of the letter were essential to the claim against the brokers. Their absence therefore required dismissal.