Noble v Owens

In a civil claim alleging that compensation was obtained by fraud, the party making the allegation bears the burden of proof. The applicable standard remains the balance of probabilities. The seriousness of the allegation does not create a higher standard, but affects the assessment of inherent probability and the strength of evidence required to establish the event. The court must assess the evidence as a whole, including whether apparent inconsistencies in a claimant’s presentation have credible medical or factual explanations. Significant later improvement in physical functioning does not, without more, prove that the claimant dishonestly misrepresented his condition at the earlier assessment.

The claimant had previously obtained judgment for substantial damages following a road accident. After the defendant’s insurers obtained surveillance footage showing the claimant undertaking activities apparently inconsistent with the disability described at the original quantum trial, the defendant alleged that the damages had been obtained by fraud.

The Court of Appeal directed the trial judge to determine whether any significant part of the damages had been fraudulently obtained and, if so, to reassess the damages. The present hearing concerned the first issue: whether the claimant had dishonestly and knowingly misrepresented the extent of his disability to experts and the court.

1. The defendant bore the burden of proving that Noble v Owens had obtained a substantial part of his damages by dishonestly and knowingly misrepresenting his disability to the care experts, orthopaedic surgeons and the court. The applicable standard was the balance of probabilities.
2. Applying Re H and others (minors) [1996] AC 563, the seriousness of an allegation did not impose a higher standard of proof. It required the court to take account of the inherent probability or improbability of the alleged event when weighing the evidence.
3. The surveillance evidence was admissible. The court rejected the objections based on filming from neighbouring land, alleged editing, selective filming and the unavailability of the original SD cards. The failure to disclose one master DVD was a regrettable mistake but caused no injustice.
4. The claimant’s improvement was significant, but the court accepted that it was not necessarily present every day and that he continued to experience substantial disability. The medical evidence, particularly that of Mr Worlock, provided a cogent multi-factorial explanation involving better pain control, reduced stress and anxiety, natural variability, limited spontaneous recovery and possible emphasis of disability at the earlier assessment. The ankle injection might also have assisted his later unaided walking, although it did not explain the whole improvement.
5. The court accepted that there were reservations about parts of the claimant’s evidence and that he and Mr Duthie had discussed their evidence concerning one neighbour. Those matters did not establish that the claimant had dishonestly misrepresented his disability. The defendant failed to prove fraud, and the allegation that the claimant had dishonestly misled the court at the quantum trial was dismissed.

• Court of Appeal directed the trial judge to determine whether any significant part of the damages had been fraudulently obtained and, if so, to reassess the damages: [2010] EWCA Civ 224.
• High Court (Queen's Bench Division) determined the fraud issue and dismissed the allegation.