By Maxine Best
A consideration of the Court of Appeal’s recent decision in (1) Rizan (2) Rilshad v (1) Hayes (2) Allianz Insurance PLC  EWCA CIV 481 before Tomlinson LJ, Rafferty LJ and Briggs LJ.
This is not an unusual set of facts in a road traffic collision. The First Claimant (driver) and Second Claimant (passenger) were travelling in a BMW which was struck on its left hand side by the Defendant’s Astra van which allegedly failed to give way when pulling from a side road directly into collision with the moving BMW. Both the Claimants claimed general damages and special damages. The First Defendant driver was never served with the proceedings – they were dealt with throughout by his insurers, Allianz Insurance PLC, the Second Defendant in this case. The Second Defendant alleged that the claim was fraudulent and pleaded a detailed case in reliance upon the report of an expert in accident reconstruction which concluded the BMW must have been stationary at the time it came into contact with the Vauxhall Astra Van. The Second Defendant, in particular, contended as follows:
- f) In the circumstances it is averred that either:
- i) The alleged accident was staged and that the First Defendant was complicit, or
- ii) That the driver of the BMW brought the vehicle to a halt in the path of the Vauxhall Astra Van without reason and intending to cause an accident.
AT FIRST INSTANCE
Judge Charles Harris QC’s extempore judgment is reproduced fully in the appeal report (here) but in short he concluded that the account given by the Claimants was unsatisfactory and as such the claim failed. Following formal judgment Counsel began to seek clarification on something before the Judge interrupted and stated as follows:
“If it were necessary to do so, which it isn’t, I would find that this was a fraudulent claim. Now, what’s the costs position?”
As a result of the contingent finding, the judge awarded costs against the Claimants on an indemnity basis.
The Claimants appealed submitting
- the judge’s finding of fraud was unsupportable; and
- in the absence of a finding of fraud the judge could not properly have dismissed the claim.
Tomlinson LJ succinctly stated:
“In my opinion the judge was unwise to express a view on the question whether the claim was fraudulent, and doubly unwise to do so without giving reasons for his conclusion over and above those which he had already given for his dismissal of the claim.” 
The Justices were all in agreement that the finding of fraud should be set aside.
In the absence of a finding of fraud, it was submitted by the Claimants that the claim should not have been dismissed. They relied upon the Second Defendant’s own statement of case that EITHER there had been a conspiracy between the Claimants and First Defendant OR the collision had been deliberately caused by the Claimants. It was submitted that if there was no finding of deliberate, fraudulent action, and no finding of a conspiracy, the only remaining interpretation was that an accident had occurred and the claim should not have been dismissed.
The Justices noted the following:
- The only evidence adduced to the effect that the two vehicles collided at the time and in the circumstances alleged came from the Claimants themselves;
- The conclusion of the experts that the two vehicles had come into collision albeit at a time when the BMW was stationary does not assist in tying the impact to the circumstances and place alleged by the Claimants;
- The judge at first instance gave his reasons for regarding the evidence before him as unreliable;
- The judge’s reasons were cogent and compelling;
- The judge’s conclusion falls well within the ambit of reasonable decision-making and it would not be justified for this court to interfere;
- The judge’s dismissal of the Claimants’ claims is upheld.
Naturally, the setting aside of the finding of fraud impacted the direction that the Second Defendant’s costs should be assessed on the indemnity basis. This direction was likewise set aside and substituted with a direction for assessment on the standard basis.
- Caution should be taken in encouraging a finding of fraud by the court when it is not necessary.
- Despite fraud having been pleaded, the claim can still fail without such a finding simply through the Defendant demonstrating the Claimant cannot prove their case to the requisite standard.
- If seeking a finding of fraud, practitioners should be prepared to:
- Prove who/how many of the parties are implicated in the fraud
- If a serious allegation is being made, provide cogent evidence to overcome the unlikelihood of what is alleged and thus to prove it.
Tomlinson LJ’s suggested a number of relevant considerations:
“ …the good character of the actors involved, their different ethnic, cultural and linguistic backgrounds, the recent acquisition of the BMW and its use for chauffeuring or taxi services, the potentially modest size of any award for whiplash injury, all of which might at first blush tell against a fraudulent conspiracy, or against one including all three actors”. 
The full judgment can be read here.