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Court of Appeal dismisses Claimants’ request for permission to appeal in Azimi Group of cases

In August 2014, Associate James Stevens brought us an update on the Azimi Group of cases, in which he was acting for three insurers and the dismissal of the Claimants’ paper request for permission to appeal. James now reports on the result of the Claimant’s oral request for which was heard on Monday.

In Azimi, James was instructed by QBE, RSA and KGM insurance to defend a group of seventeen suspected deliberately induced road traffic accidents that the insurers believed formed part of a large scale organised fraud codenamed Operation Percutter. In thirteen of these cases, the claims were either withdrawn or discontinued. The remaining four cases were case managed together and the trials heard before His Honour Judge Mitchell in the County Court at Central London in August 2013, when the claims were dismissed.

Background

DWF LLP’s investigations identified over fifty road traffic accidents, across the insurance industry that were linked to this scam. During the course of the litigation DWF LLP submitted similar fact evidence detailing the links between the incidents to include the details of the accident management company used by all the Claimants, the close proximity of these accidents in time and the shared accident circumstances, the Claimant vehicle braking irrationally to a halt or a near halt in response to the manoeuvre of an unidentified vehicle ahead, causing the insured target vehicle to hit the rear of the Claimant vehicle. In the majority of cases the insured vehicle was of a commercial type.

The Operation had previously been the subject of a Metropolitan Police investigation which resulted in one of the Directors of the accident management company in question, who had been caught on surveillance footage as being directly involved in this crash for cash scam, being convicted of deliberately inducing multiple collisions. That Director subsequently absconded whilst on bail and fled the country.

At trial in June 2013, HHJ Mitchell made a finding that the accidents had been staged in all four of DWF LLP’s cases. In February 2014 the Nesbit Law Group LLP, acting for all Claimants, applied to the Court of Appeal for permission to appeal on all cases.  The Appeal was initially considered on paper by the Rt. Hon Lord Justice Lloyd Jones in early August 2014 and permission to appeal was refused on all cases.

Subsequently, the Claimants’ solicitors lodged an application on behalf of the Claimants for renewal of their application for permission to appeal at an oral hearing. The hearing was listed for Monday 9 March 2015 before Lord Justice Sales.

Appeal

Permission to Appeal Hearing

The following points were made by the Claimants in respect of HHJ Mitchell’s Judgment:

  • The Appeal was limited to an appeal against findings of fact

  • In each case there was powerful objective evidence which pointed towards the accidents having genuinely occurred;

  • The Judge had erred in that his starting point ought to have been that the Claimants were innocent;

  • The Judge failed to put sufficient weight to crucial parts of the evidence;

  • The Judge was wrong to rely on statistics advanced by the Defendants as to the number of cases commenced by Claimants via the accident management company but subsequently discontinued, as being probative of guilt;

  • The Judge wrongly placed reliance on the evidence advanced in respect of the Director’s involvement in the incidents investigated by the police as he had fled the country by the time of the incidents that were the subject of the trial.

  • The trial Judge made subjective judgments regarding how honest people behave.

Judgment

In response to the similar fact evidence points raised by the Claimants, Lord Justice Sales disagreed with the Claimants’ submissions and stated:

He (HHJ Mitchell) reminded himself that his decision had to be reached on the basis of the evidence in each case and his Judgment was structured that way”.

Lord Justice Sales further stated:

It seems to me that a Judge can take into account that a known fraudster has a modus operandi of systematic fraud using this company. And on your statistics point, it does not seem to me that that’s the crux of the matter as far as the trial was concerned. It was just one part of the case and it could be said it is legitimate for a trial judge to take such matters into account”.

In response to the Claimants’ submissions that the Judge’s starting point ought to have been that the Claimants were innocent, Lord Justice Sales stated:

I do not consider that there is any arguable ground of criticism of the Judge in this respect. It is clear from comments he makes that he had well in mind that various Claimants appeared to be ordinary hardworking members of the public who would not ordinarily be involved in dishonesty and it is clear to me that he factored this into his decision in each individual case”.

Having dismissed the Claimants’ submissions in respect of the similar fact evidence, His Lordship affirmed that if permission to appeal were to be made out, it must be on the basis of an assessment of whether the Judge erred in his assessment of the evidence in the individual cases. In this regard Lord Justice Sales commented:

It should be emphasised at the outset that in each of the proposed appeals, what is contemplated is an attack upon the Judge’s findings of fact based on the evidence he heard. The Court of Appeal will be slow to find that a trial judge has erred in making findings of fact since it is very conscious that it is the Judge who had the benefit of hearing the witnesses in person and been able to make an assessment of them in light of the quality of their evidence”.

In all cases Lord Justice Sales refused permission to appeal and agreed with the previous Judgment of Rt. Honourable Lord Justice Lloyd Jones. He specifically cited that even though the trial Judge had not referred to every item of evidence that had been heard at trial, that is not an arguable basis for permission to appeal. The Judge is entitled to make an assessment in the round. 

Conclusions

This was a case in which an attempt was made to devalue and discredit the use of similar fact evidence in organised fraud cases. Had it been successful this would have had a considerable impact upon a Defendant’s ability to evidence a fraud ring in action. Whilst the use of similar fact evidence has been endorsed by the Judiciary in this case, a degree of caution should be exercised to rely solely on similar fact evidence in cases of this type. Such evidence should properly be deployed to serve as a reminder to the Judge that organised fraud does exist on a large scale and that when hearing the evidence he should have regard to that fact. However that does not detract away from the need to still have the correct substantive evidence in place.

Contact

For further information, contact James Stevens on 0161 603 5186, or at james.stevens@dwf.co.uk

By James Stevens

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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