Ahmed v Lalik & Anor

In minor road-traffic claims, a defendant need not plead fraud or fabrication as a substantive defence. It is sufficient to plead detailed facts inviting the court to draw inferences that the alleged injuries or damage were not suffered or caused as claimed.

Adverse inferences from absent witnesses are permissible only where the witness might reasonably be expected to give material evidence, there is a case to answer, and no credible explanation for the absence is provided. A trial judge may use proved dishonesty or material exaggeration in an earlier settled claim when assessing the claimant’s overall credibility. An inference from refusal to permit vehicle inspection may also support a failure to prove the claimed damage.

The claimant sought damages arising from an alleged road accident. The County Court dismissed the claim after finding that an earlier personal-injury claim had involved substantial exaggeration, drawing adverse inferences from the absence of witnesses, and concluding that the claimant had not proved that the alleged vehicle damage resulted from the later accident.

The claimant applied for leave to appeal, alleging procedural unfairness, errors of law and unsustainable factual findings. The central issues were whether fraud had been improperly treated as an unpleaded issue, whether adverse inferences could be drawn from absent witnesses, and whether the findings concerning the earlier claim and vehicle damage were open to the trial judge.

1. Application refused. The trial judge had not erred in approaching the defence as one which challenged credibility and invited adverse inferences. Under Kearsley v Klarfeld [2005] EWCA Civ 1510; [2006] 2 All ER 303 and Francis v Wells [2007] EWCA Civ 1350; [2008] RTR 13, a substantive allegation of fraud is not required in this type of minor road-traffic claim where the defence sets out the detailed facts relied upon to invite adverse inferences. The observations in Hussain v Amin, Charters Insurance Ltd [2012] EWCA Civ 1456 did not cast doubt on that established approach.
2. The judge was entitled to draw inferences from the failure to call the claimant’s brother and two friends. The principles approved in Benham Limited v Kythira Investments Limited [2003] EWCA Civ 1794, following Wisniewski v Central Manchester Health Authorities [1987] PIQR P 324, required a case to answer, a witness who might reasonably be expected to give material evidence, and the absence of a credible explanation. Those conditions were satisfied.
3. The finding that the earlier claim had been materially false was open to the judge. The medical report materially overstated the claimant’s symptoms when compared with his GP records and other evidence. That finding was relevant to his overall credibility. The appellate court could not interfere merely because it might have reached a different conclusion: Assicurazioni Generali v ARIG [2003] 1 All ER (Comm) 140.
4. The judge was entitled to infer from the refusal to permit inspection, together with the engineering evidence, that the claimant had not proved that the damage recorded after the later accident was caused by it. The inference was not itself a finding that no accident occurred, but a conclusion that the claimant had failed to prove the extent and causation of the vehicle damage.
5. The claimant had been given a sufficient opportunity to address the matters on which the judge ultimately relied. Limiting submissions in a fast-track trial to the issues troubling the judge was permissible and consistent with the overriding objective.

• High Court (Queen's Bench Division) — application for leave to appeal refused.
• Derby County Court — on 1 July 2014, Recorder Jack dismissed the claimant’s claim arising from the alleged road accident.