Rizan & Anor v Hayes & Anor

A claimant must prove the alleged accident and its circumstances on the balance of probabilities. A court is not required to choose between the claimant’s account and an alternative explanation advanced by the defendant. It may dismiss the claim where the evidence leaves it in doubt, even if some damage or collision is established. Evidence that a collision occurred does not itself prove that it occurred as pleaded. A judge should avoid making an unnecessary finding of fraud, and any such finding must address the seriousness of the allegation and relevant inherent probabilities without applying a heightened civil standard of proof.

The claimants appealed against an Oxford County Court judgment dismissing their claims for personal injury and vehicle-related losses arising from an alleged road collision. The trial judge found their evidence unreliable and concluded that they had not proved the accident as alleged. He also expressed the contingent view that the claim was fraudulent and ordered indemnity costs.

The appeal challenged the dismissal on the basis that, absent a finding of fraud, the evidence compelled a finding that the insured driver had caused the collision. The Court of Appeal considered the burden of proof, the effect of the accident-reconstruction evidence, the admissibility of the first defendant’s statements, and whether the contingent fraud finding and costs order should stand.

1. Disposition. Tomlinson LJ delivered the judgment, with which Rafferty LJ and Briggs LJ agreed. The appeal was dismissed insofar as it challenged the dismissal of the claims. The contingent finding of fraud was set aside, and the indemnity costs direction was replaced by an order for costs on the standard basis.
2. Burden of proof. The claimants bore the burden of proving that the accident occurred at the time, place and in the circumstances alleged. The court was not faced with a binary choice between the claimants’ account and the alternative explanations advanced by the insurer. Applying Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 WLR 948, and the summary in Sienkiewicz v Greif UK Ltd [2011] 2 AC 229, the judge was entitled to conclude that the evidence was too weak and that the claimants had failed to discharge the burden of proof.
3. Evidence. The joint expert evidence supported the conclusion that the BMW was stationary at impact, but did not establish that the impact occurred in the place or circumstances alleged. The judge was entitled to reject the claimants’ accounts because of their inconsistencies and their conflict with the engineering evidence. An appellate court should not interfere with such factual conclusions unless no reasonable judge could have reached them.
4. Statements of the first defendant. Under the Civil Evidence Act 1995 and Civil Procedure Rules 1998 Part 33, permission to rely on a witness statement did not make its contents admissible as hearsay proof where the maker was not called. The statements were therefore not evidence establishing the accident.
5. Fraud finding. The judge was right to leave the fraud issue unnecessary to the determination of the claims, but was unwise to express a contingent conclusion on it without separate and adequate reasons. The guidance in In re H and Others (Minors) [1996] A.C. 563 required the seriousness and inherent improbability of the allegation to be addressed without imposing a higher standard of proof. The judge had not sufficiently identified the alleged participants or addressed the relevant improbabilities, so that finding could not stand.

1. Court of Appeal (Civil Division). On appeal, the dismissal of the claims was upheld. The contingent fraud finding was set aside, and the indemnity costs direction was substituted with standard-basis costs: [2016] EWCA Civ 481.
2. County Court at Oxford. HH Judge Harris QC dismissed the claims following the trial on 20 May 2014 and ordered the claimants to pay the second defendant’s costs on the indemnity basis.