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Paul Higgins successful in High Court Appeal

In AXA Insurance UK PLC v Kryeziu & others [2023] EWHC 3233 (KB), Johnson J allowed appeals against various orders made by HHJ Lethem. AXA held back Facebook material connecting the two drivers until  after service of D1’s witness statement. The learned judge deprecated such activity but granted relief from sanctions and permitted AXA to rely upon the material: ‘I do not consider that the ultimate sanction of refusing to permit the appellant to advance the central strand of its case would be justified’.

The Appeal also involved consideration of what must be pleaded in a tort of deceit claim. Leading counsel had pleaded that  ‘no genuine accident as alleged by the Defendants took place’, and AXA sought a declaration to the effect that ‘no genuine accident occurred as alleged by the Defendants and none suffered personal injury’. D1 argued that this plea was too broad, did not enable him to understand the case he had to meet, and – inferentially – that AXA needed to plead and establish what had happened. Judge Lethem agreed with that submission, holding that the plea was ‘pregnant with innuendo’, but Johnson J rejected it, holding that it was sufficient for AXA to identify the representation that was said to be false, assert that it had been made dishonestly and plead out the facts relied upon to support the allegation of fraud.

It is submitted that there will be occasions when the relevant representation contains a binary quality. Whether a watch is a Rolex or a painting a Picasso returns a score of 1 or 0, and there was no additional burden on the representee to prove the actual make of the watch, or the identity of the painter. Johnson J accepted these submissions, holding that it was not necessary for AXA to establish what he termed the ‘underlying facts’. The logical endpoint of that process of reasoning is perhaps that in some cases it is not necessary to allege any facts other than that the statement is false:  e.g. if a representation is made that a villa has a swimming pool, when it does not, the only fact relied on is the absence of a pool: nothing more can sensibly be added. This might mean that in such a case only the ingredients of the tort needed to be pleaded (including the assertion of a binary fact and its falsity). The Judge dealt with this in the context of the Rolex and Picasso examples and re-iterated the basic rule that ‘where a party alleges fraud, that party must plead the facts on which reliance is placed’.

D2-D5 were also involved in the appeal. The claims against them and their counterclaims had been resolved pre-trial but they became aware that the trial bundle contained some of their documents, and applied for these to be removed. They also sought a ruling that because the compromise agreement contained a provision that ‘no further action’ would be taken against them, this prevented AXA from seeking findings that e.g. no genuine accident had occurred, they were not present in the car, or they were not injured. Judge Lethem rejected the application for documents to be removed from the trial bundle, rejected the submission that AXA could not submit against D1 that no genuine accident had occurred, but acceded to the submission that AXA could not put to D1 or submit that any of D2-D5 were not present or were uninjured. Johnson J allowed AXA’s appeal from that ruling, holding that ‘Nothing in the settlement agreement prevents the appellant from seeking either type of finding. Doing so does not amount to taking action against the second to fifth respondents’.

Paul Higgins acted on behalf of AXA Insurance UK PLC, the successful appellant, instructed by Damian Rourke (Clyde & Co LLP)


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