Haider v DSM Demolition Ltd

A following driver must leave sufficient distance and drive at a speed enabling reasonable traffic emergencies to be met. The duty is fact-sensitive. A driver need not anticipate every form of folly, and breach of the Highway Code is evidence of negligence rather than negligence per se.

On an appeal against factual findings, the appellate court must respect the trial judge’s assessment of witnesses and intervene only where the finding is plainly wrong or affected by serious procedural irregularity. Reasons are adequate where, read with the evidence and submissions, they disclose why the decision was reached.

For QOCS purposes, deliberate non-disclosure of material financial information going to a substantial claim for credit hire charges may constitute fundamental dishonesty.

The claimant appealed against the dismissal of his claim for personal injury and other losses arising from a rear-end road traffic accident. The County Court found that the claimant had stopped unnecessarily after another vehicle turned left, and that the defendant’s driver was not negligent at the point of collision. The claimant challenged the adequacy of the reasons and the factual conclusion on negligence.

The defendant sought relief from sanctions for serving its respondent’s notice late and permission to cross-appeal on fundamental dishonesty and QOCS. The central issues were whether the trial judge’s reasoning and findings could stand on appeal, whether relief from sanctions should be granted, and whether the claimant’s non-disclosure of credit cards and a bank account was fundamentally dishonest.

1. Claimant’s appeal. The appeal was dismissed. Under English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, a judgment must identify issues vital to the conclusion and explain how they were resolved. The appellate court may consider the evidence and submissions when deciding whether the reason for the decision is apparent. The trial judge’s short judgment sufficiently explained that the claimant had stopped unnecessarily and that the defendant’s driver was not travelling too fast or too close at the point of impact.
2. The duty of a following driver is to maintain a distance and speed enabling reasonably anticipated traffic exigencies to be addressed: Thompson v Spedding [1973] RTR 312; Brown and Lynn v Western Scottish Motor Traction Co Ltd [1945] SC 31. A driver is not required to anticipate folly in all its forms: London Passenger Transport Board v Upson [1949] AC 155. Rule 126 of the Highway Code and section 38(7) of the Road Traffic Act 1988 supported that approach. The trial judge was entitled to accept a lower speed at the moment of collision and conclude that negligence by the defendant had not been proved.
3. The court applied the restraint required on an appeal from factual findings. The judge’s assessment of the evidence was not plainly wrong. Piglowska v Piglowski [1999] 1 WLR 1360 supported reading reasons realistically rather than by narrow textual analysis.
4. Sanctions and cross-appeal. Relief from sanctions was granted under CPR r 3.9. The breach was serious and substantial and the explanation was not particularly strong, but the hearing was not imperilled and the claimant could respond fully. The decision was confined to the facts of this case.
5. Permission to cross-appeal was granted, and the cross-appeal succeeded to the extent that the costs order was made enforceable. Applying Howlett v Davies [2018] 1 WLR 948, dishonesty is fundamental where it goes to the root of the whole claim or a substantial part of it. The claimant knowingly failed to disclose two credit cards, a second bank account and associated documents. That prevented proper investigation of impecuniosity and materially distorted a credit-hire claim exceeding £30,000. The failure was therefore fundamentally dishonest for CPR r 44.16(1) purposes.
6. The court applied the objective standard for dishonesty stated in Ivey v Genting Casinos (UK) Ltd [2018] AC 391. Other alleged dishonesty, including the claimant’s account of braking, did not need to be determined and was not found to be fundamentally dishonest.

• High Court (Queen’s Bench Division): the claimant’s appeal from the Birmingham County Court decision of 4 October 2018 was dismissed. The defendant was granted relief from sanctions and permission to cross-appeal; its cross-appeal succeeded on fundamental dishonesty and enforceability of costs.
• Birmingham County Court: the claimant’s road-traffic claim was dismissed. The judge found no fundamental dishonesty and therefore did not disapply QOCS.