Smyth v St Andrews Insurance Plc

An isolated reference to a need for compelling evidence may appear to impose too high a threshold in a civil fact-finding exercise. However, the judgment must be read as a whole. Where the trial judge has assessed the competing evidence and inherent probabilities without applying an elevated burden of proof, that wording does not vitiate the conclusion.

An appellate court will not interfere with a factual finding where the evidence supporting the competing case is extremely weak and the trial judge’s conclusion was open on the evidence.

The insured sought an indemnity for fire damage to a house in Brighton. The insurer alleged that the insured’s partner had deliberately caused the fire. At trial, the realistic alternatives were a negligently discarded cigarette in the basement or arson by the partner.

HHJ Randall QC, sitting as a Deputy Judge of the Queen’s Bench Division, found that the cigarette explanation was more likely. The insurer sought permission to appeal, principally on factual grounds. On renewal, it argued that the judge’s reference to a lack of compelling evidence had wrongly raised the evidential threshold for proving arson.

1. The renewed application for permission to appeal was refused. The proposed factual challenges disclosed no basis on which the Court of Appeal would reverse the trial judge’s findings. The evidence supported the possibility that a discarded cigarette had ignited paper in the untidy basement within the relevant period.

2. The judge’s use of the word compelling could, if read alone, have suggested an impermissibly high evidential threshold for accepting arson. The reference arose from Re B, [2008] UKHL 35, which was cited for the proposition that an assumption based on inherent probabilities may be swiftly displaced by evidence of the particular circumstances.

3. Read as a whole, however, the first-instance judgment did not require compelling evidence as a separate or heightened standard. The judge had reviewed the factors said to support arson and concluded, on the evidence and a common-sense assessment of inherent probabilities, that arson was unlikely. The evidence in favour of arson was extremely weak.

4. The challenged wording therefore did not vitiate the factual conclusion. The Court of Appeal was confident that it would reach the same conclusion, so there was no point warranting permission to appeal.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused: [2013] EWCA Civ 133.

• High Court of Justice, Queen’s Bench Division: HHJ Randall QC, sitting as a Deputy Judge, found that the fire was more likely caused by a negligently discarded cigarette than deliberate arson. The judgment’s citation is not stated in the judgment.