Interlocutory strike out of RTA claim in which the Claimant served a statement from a witness who was said to be ‘independent’ but was not.
In Butt v Gargula (2024), HHJ Brown was invited to strike out a road traffic accident claim, rather than permit it to proceed to trial, because the Claimant had served a statement from a witness who was said to be ‘independent’ but was not. The interlocutory application was brought under CPR 3.4(2)(b), on the grounds that the Claimant’s conduct was “likely to obstruct the just disposal of the proceedings”.
The Judge granted the application and struck out the claim, relying on the test formulated in Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 namely “[49] … Is the litigant’s conduct of such a nature and degree as to corrupt the trial process so as to put the fairness of the trial in jeopardy?..”. The Claimant was ordered to pay the Defendant’s costs of the action on the indemnity basis, and QOCS was disapplied.
The facts
Following a routine road traffic accident involving allegations that one party, or the other, changed lanes resulting in a collision, the Defendant’s case was that there were no eyewitnesses. After legal proceedings were issued, the Claimant sought to rely upon evidence from an alleged ‘independent’ witness who said she had witnessed the accident and blamed the Defendant. The Claimant also answered a Part 18 request in which he stated that the witness was not known to him before the accident.
However, the Defendant’s investigations revealed that the Claimant and the alleged witness (i) both had residential links to five properties, (ii) were both directors of the same company and (iii) were both involved in a road traffic accident less than 12 months after the index collision.
The Defendant applied to strike out the claim on the basis that the Claimant’s activity, which it contended was dishonest, was “likely to obstruct the just disposal of the proceedings”.
The judgment
HHJ Brown followed the decisions in Summers v Fairclough Homes Ltd [2012] UKSC 25, Arrow Nominees v Blackledge & Ors [2001] BCC 591 and Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 and held that the jurisidiction to strike out was engaged if “the [Claimant’s] conduct [was] of such a nature and degree as to corrupt the trial process so as to put the fairness of the trial in jeopardy” (as per Excalibur).
The Claimant argued that the claim should be permitted to proceed to trial but HHJ Brown rejected that submission., The Judge had regard to the decision of the Court of Appeal in Arrow Nominees v Blackledge & Ors [2001] BCC 591 at [55], that “… a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court. The court does not do justice to the other parties to the proceedings in question if it allows its process to be abused so that the real point in issue becomes subordinated to an investigation into the effect which the admittedly fraudulent conduct of one party in connection with the process of litigation has had on the fairness of the trial itself…”
The Judge took the view that a strike out was consistent with the Overriding Objective.
The link to the judgment is here.
What this means for insurers
An effective method of halting claims that are tainted by dishonesty, prior to trial, has long been coveted by insurers. S. 57 of the Criminal Justice & Courts Act 2015 (s. 57) is a very useful instrument, but is engaged only if a claimant is entitled to damages. If liability remains in dispute, interlocutory relief under s.57 is unavailable.
HHJ Brown’s judgment is welcome because it demonstrates that where a litigant’s conduct “corrupt[s] the trial process so as to put the fairness of the trial in jeopardy”, whether by adducing false documents, false witness evidence or perhaps even providing a false account to experts, insurers may apply for a claim to be struck out at an interlocutory hearing under CPR 3.4(2)(b). It is not always necessary to proceed to an expensive trial.
The decision is also important because most s.57 determinations look at the gap between the value of the claim that was pursued and its honest part, i.e. matters relating to quantum only. HHJ Brown’s judgment focusses more on conduct, and confirms that a claim can legitimately be struck out at an interlocutory stage if false evidence is adduced. Such conduct might also encompass other activity, e.g. the forgery of documents (perhaps even if the value of the forgery was relatively modest) or suppressing disclosure. There will undoubtedly be opportunities to test the boundaries of this jurisdiction in the near future.
Paul Higgins was instructed by Damian Rourke & Peter Smithson of Clyde & Co. on behalf of Aviva Insurance.
