Martin Raymond Owens v Mark Noble [2010] EWCA Civ 224
Martin Raymond Owens v Mark Noble [2010] EWCA Civ 224
Facts
Mr Noble was injured when his motorcycle collided with a car driven by Mr Owens. Mr Owens admitted liability and damages were assessed at trial, by Field J on 11 March 2008, in the sum of approximately £3.4 million. The award was made on the basis that Mr Noble’s mobility was severely restricted (he was dependent on crutches and a wheel chair) and would remain so. It was thought that his injuries would preclude him from ever working again and that he would need a good deal of assistance with daily living. Mr Owens’ insurers did not appeal the judgment at the time and the judgment was fully satisfied.
In the autumn of 2008, the insurers received information to the effect that Mr Noble did not appear to be as seriously disabled as he had claimed. They arranged to have him watched and filmed. Between December 2008 and March 2009, Mr Noble was filmed for lengthy periods on seven occasions. The insurers took the view that the picture presented on the films was so different from that presented at the trial that the only inference to be drawn was that Mr Noble had deliberately misled the court as to the gravity of his continuing disabilities. The insurers applied to Field J for an injunction restraining Mr Noble from dissipating the remainder of his damages. On seeing the films, Field J declared that he would not have imagined that Mr Nobel would have been able to do the things he was filmed doing. The judge granted the injunction on the insurer’s undertaking to file an application to appeal to the Court of Appeal.
At the subsequent appeal, Counsel for Mr Owens submitted that the evidence of the films and other evidence obtained since the films were taken should be admitted as it satisfied the criteria in Ladd v Marshall [1954] 1 WLR 1489, and in the light of that evidence, the judgment of Field J should be set aside and the assessment of damages be retried.
Counsel for Mr Noble accepted that the fresh evidence of the films should be admitted but argued that Mr Owens’ proper remedy in a case in which fraud was alleged was to commence a fresh action to set aside the original judgment.
Held
The appeal was allowed in part. The Justices acknowledged that there were two competing lines of authority. Mr Owens relied on the Ladd v Marshall line of cases which suggest that where fresh evidence was properly admitted and it appeared to the court that it might, if admitted, have had an important effect on the trial, the right course was to send the case back for retrial. This is so even where the new evidence suggested that a deceit had been practised on the court below.
Mr Noble relied on the House of Lords decision in Jonesco v Beard [1930] AC 298 which provided authority that, where it was alleged that there was deceit in the court below, the proper course was to leave the aggrieved party to commence a new action, save where the Court of Appeal could determine the fraud issue itself – in effect where it is admitted or the evidence is incontrovertible.
Jonesco, as a decision of the House of Lords, was preferred by the Court of Appeal.
The Court of Appeal held that the on the video evidence presented it was possible that a judge would find that Mr Noble had deceived the court below. But this potential deceit was far from incontrovertible and was hotly contested by Mr Noble. Therefore, it would be wrong in law and unfair to Mr Noble for the award of damages to be set aside unless and until the fraud has been proved.
However, the Justices did not consider it necessary to commence a fresh action to determine the fraud issue as such a trial could and should be referred by them to a High Court Judge pursuant to CPR r.52.10(2)(b).
Comment
The appropriate procedure to be followed where it is alleged that a party has deliberately mislead the trial judge has been further clarified since the handing down of this judgment. The Court of Appeal have confirmed that, on remitting the issue of fraud to be heard in the lower courts, the appropriate judge to conduct the hearing would be the original trial judge (see Owens v Noble [2010] EWCA Civ 284). This appears to be the most sensible and cost-effective way of dealing with the issue as the original trial judge will be best placed to judge whether he was deceived.