Interface Properties Ltd v Eagle Star Insurance Co Ltd

With the permission of this court the claimant, Interface Properties Ltd, appeals against an order dismissing its action made on 19 February 2004 by Mr Recorder Leighton Williams QC in the Central London County Court. The claimant’s primary claim against the first defendant, Eagle Star Insurance Co Ltd (“the insurers”), was for damages in respect of their refusal to indemnify the claimant in respect of the alleged theft of a Mercedes 230 Avant-Garde motor car (“the Mercedes”). The claimant also claimed against the insurers a declaration that it was the owner of the Mercedes. It claimed a like declaration against the second defendant, Benton Finance Ltd (“the finance company”), a finance company which has played no active part in the proceedings, either at the trial or in this court.

The claimant, a property company, was incorporated on 17 June 1996. Its sole director and shareholder is Asad Shamim Chaudhary, who is now aged 39. The claimant’s business is conducted mainly from premises at 231-233 Hoe Street, Walthamstow, London E17.

The essence of the claimant’s case, as pleaded and deposed to in Mr Chaudhary’s witness statement dated 21 July 2003, is that on or around 6 May 2000 (a Saturday) he responded to an advertisement in a car magazine for the Mercedes, which was being offered for sale by a Mr Jalal Din; that Mr Chaudhary saw the Mercedes on the same day and paid a cash deposit of £500 to Mr Din; that also on 6 May Mr Chaudhary commissioned an AA Used Car Data Check, which showed that there was no record of any current finance agreement or loan secured against the Mercedes; that on 8 May 2000 (the following Monday) Mr Chaudhary completed his purchase of the Mercedes by paying to Mr Din a further £5,000 in cash and £14,495 by banker’s draft drawn on his personal account at the Co-Operative Bank in Walthamstow; that Mr Chaudhary subsequently transferred ownership of the Mercedes to the claimant, which was registered as the keeper of the vehicle and maintained it; that on or around 1 November 2000 the claimant took out a commercial fleet motor insurance policy with the insurers, under the terms of which three vehicles, including the Mercedes, were covered from 8 September 2000 to 8 September 2001 on a fully comprehensive basis; and that on 25 November 2000, while the Mercedes was being driven by Mr Chaudhary’s business associate Jabbar Mumtaz, it was stolen from Boleyn Road, Hackney, London N16, where it was parked. It was alleged that the insurers had refused to indemnify the claimant in respect of the theft, and that in consequence the claimant had suffered loss and damage in the sum of £20,295, being as to £19,995 the pre-accident value of the Mercedes and as to £300 the value of accessories.

The particulars of claim were dated 7 February 2002. By their defence dated May 2002 the insurers admitted that they had refused to indemnify the claimant in respect of the alleged theft, and asserted that the Mercedes was registered on 4 May 2000 to Mr Din, who entered into a credit hire agreement with the finance company on 7 May 2000, at which time he collected the Mercedes. It was further asserted that Mr Chaudhary requested an AA Used Car Data Check on the Mercedes on 6 May 2000 and that the claimant had not produced any details of the advertisement to which Mr Chaudhary responded. Para 3 of the defence was in these terms:

On 2 October 2002 the claimant replied to a request for further information pursuant to CPR part 18. So far as is now material, the reply was to the following effect. Mr Chaudhary did not recall where the Mercedes was advertised; it might have been Exchange and Mart or the Loot magazine, or possibly the Sunday Times. Mr Chaudhary recalled that the advertisement had a mobile number for contact, and that the price advertised was £1,000 more than the price he paid to purchase the vehicle (£19,995); no names were given in the advertisement. Mr Chaudhary responded to the advertisement by telephoning the mobile number and spoke to a Mr Jalal Din, who brought the car to Hoe Street on 6 May 2000, for Mr Chaudhary to inspect it. Mr Din was not previously known to Mr Chaudhary. On 8 May the Mercedes was delivered to Mr Chaudhary at Hoe Street, when he paid the balance of the purchase monies to Mr Din. Mr Chaudhary collected the car himself from Mr Din. As for the transfer by Mr Chaudhary to the claimant, no formal documentation was put in place and no consideration was given, save that the claimant would pay for the maintenance and running expenses of the Mercedes which was to be used for business purposes. The relationship between Mr Chaudhary and Mr Mumtaz was a business relationship, Mr Mumtaz being a joint director with Mr Chaudhary of a telecommunications company called Communikate Ltd, of which Mr Mumtaz was a 50% shareholder; Communikate Ltd operated from 231-233 Hoe Street. On the date of the theft Mr Mumtaz was driving the Mercedes in a business capacity, collecting some rents on behalf of the claimant. Mr Mumtaz was driving the Mercedes with Mr Chaudhary’s permission.

It was common ground throughout that Mr Din was perpetrating a fraud on the finance company. In the light of the arguments in this court it is important to note that at the end of his witness statement Mr Chaudhary pointed out that no allegation that he was in any way connected with Mr Din’s fraud had been pleaded by the insurers.

In addition to Mr Chaudhary’s witness statement, there was put in on behalf of the claimant a witness statement by Kiran Meisuria of Oak Insurance Services in Enfield, who acted for the claimant in effecting the policy under which the Mercedes was insured. On behalf of the insurers, there were put in two witness statements by Phillip Bennett, the proprietor of a firm of car dealers called Benson at Rodley Car Centre in Leeds (“Bensons”), and one statement by Simon Mark Webster, a sales manager with Bensons at the material time. There were also witness statements by Cameron Lester Solley and Graham Winborn, employees of the insurers’ solicitors. Finally, there were witness statements by two police officers with West Yorkshire Police, whose evidence was not relied on by the recorder and need not be referred to again. At the trial evidence was given by Mr Chaudhary (who was recalled twice) and Mr Meisuria (who was recalled once) on behalf of the claimant. Mr Bennett and Mr Winborn gave evidence on behalf of the insurers.

The trial took place on 22 and 28 January 2004, when judgment was reserved. On 19 February 2004 the recorder delivered a long and careful judgment in which he dealt with the evidence in great detail and made findings on all the more important issues that had been raised before him. Having then heard argument as to costs, he ordered that the claimant should pay the insurers’ costs of the action (with a minimal exception) on the indemnity basis. It will be necessary to refer to observations made by the recorder in making that order.

As already stated, it was common ground throughout that Mr Din was perpetrating a fraud on the finance company. The recorder said (para 7) that the case was a variant of a common situation where a rogue obtains a vehicle from a garage, funding the acquisition by a hire purchase or a conditional sale agreement, and then sells the vehicle before he has paid off the finance company. He added that in most such cases the purchaser was acting in good faith and the issue was whether he had acquired title to the motor car. However, in the present case a central issue was whether Mr Chaudhary acquired the Mercedes in good faith.

Between paras 9 and 21 of his judgment the recorder considered at length the evidence relating to the acquisition of the Mercedes by Mr Chaudhary. I will refer to the points which continue to be important. In para 11 the recorder pointed out that searches by the insurers (through Mr Solley and Mr Winborn) had failed to discover any published advertisement for the sale of the Mercedes by Mr Din in the Exchange and Mart, Loot magazine, the Sunday Times and other magazines, but also that searches in the Sunday Times included looking for the name “Jalal Din”, which the claimant stated did not appear in the advertisement. The recorder’s summary in para 12 of Mr Chaudhary’s evidence as to the events of Saturday 6 May must be quoted almost in full:

In para 13 the recorder observed that the evidence on how Mr Chaudhary acquired the Mercedes all came from him. He received no independent evidence and, surprisingly, given the part they had played, no evidence was put before him from Mumtaz or Ali. Mr Chaudhary said Mumtaz, whom he had known for nine years, was his sister-in-law’s husband, and was working abroad at the time of the trial, although he had last seen him about five months previously: Mumtaz had not been an employee of the claimant. Mr Chaudhary had not seen Ali for about one year. The recorder said that he was given no reason why they were not able to assist.

In para 17 the recorder turned to the evidence on behalf of the insurers which contradicted Mr Chaudhary’s evidence that he saw the Mercedes on the 6 May. This evidence was given by Mr Bennett and Mr Webster. The salesman who had handled the purchase of the Mercedes by Mr Din was Neil Suddards, who was described by Mr Bennett as someone in whom he had the highest confidence. In his statement Mr Webster, who was working abroad at the time of the trial, described the purchase and the arrangements with the finance company, stating that the Mercedes was released to Mr Din on Sunday 7 May 2000 on completion of the finance formalities and upon payment by Mr Din of the non-financed balance by way of credit card and cash. He added that the Mercedes had been at Bensons’ premises in Leeds throughout the period from 29 April until 7 May. In his evidence Mr Bennett said that Bensons kept a log of cars on the premises. He also made it clear that vehicles were not released without cleared funds, and explained that the salesroom was open on Sundays; the vehicle would not have been released until Sunday 7 May.

Having referred to three documents included in those produced by Bensons, the recorder said (para 21):

The recorder proceeded to deal with the alleged transfer of the Mercedes to the claimant (paras 22 and 23), the insurance of it with the insurers (paras 24 to 27) and the alleged theft (paras 28 and 29). In para 29 he observed that the only evidence he had of the alleged theft came from Mr Chaudhary; again it was surprising given that the insurers were putting the claimant to proof that there was a theft, that there was not even a statement from Mumtaz dealing with it.

In paras 30 to 32 the recorder dealt with two answers given by Mr Chaudhary to questions in the insurance claim form. Although he was unwilling to draw any inference adverse to the claimant or Mr Chaudhary from the contents of that form, he went on to refer to Mr Chaudhary’s evidence as to two vehicles he had previously had stolen and described it as not being very impressive.

In para 33 the recorder said:

In para 34 the recorder said that he saw no reason to distrust the substance of Mr Webster’s and Mr Bennett’s evidence, namely that the deal was done on the Sunday (7 May). Having dealt with points raised by Mr Leech, he said that he found Mr Bennett an impressive witness and saw no reason to find on the evidence that Bensons’ house rule that no vehicle was to be released until funds were cleared was broken in this case.

Para 35 of the recorder’s judgment, which is central to the claimant’s case in this court, must be read in full:

In para 36 the recorder said that he was not satisfied that the events of 8 May took place, at least as described by Mr Chaudhary:

The recorder concluded his judgment as follows:

On 19 February 2004, after judgment, Mr Casey, for the insurers, applied for their costs to be assessed on the indemnity basis, primarily on the ground that in paras 35 and 36 of his judgment the recorder had found that Mr Chaudhary had deliberately not told the court the truth about the events of 6 and 8 May 2000. Having heard Mr Leech in opposition to that application, the recorder said:

On 3 March 2004 Mr Chaudhary put in a witness statement in support of an application for permission to appeal against the recorder’s order. Having referred to the claimant’s portfolio of 40 properties with an estimated market value of £12m and his separate personal portfolio of approximately 50 properties with an estimated market value of £10m (the total borrowings on these properties only amounting to around £4m), Mr Chaudhray expressed his concern with the way that the insurers had conducted their case at the trial and his extreme concern at the serious findings made by the recorder in his judgment. Having said that he was a law-abiding citizen with no criminal record, he continued:

On 24 March 2004 the recorder refused permission to appeal, his written reasons stating:

On 24 May 2004 an application to this court for permission to appeal was refused by Lord Justice Potter on consideration of the documents, for the following reasons:

On 17 June 2004, on a renewed application, permission to appeal was granted by my Lady, the President, and Lord Justice Neuberger. In delivering the first judgment, Lord Justice Neuberger stated that in essence the application was really, or at least primarily, made with a view to protect the good name of Mr Chaudhary.

In this court (both on 17 June and on the hearing of the appeal) the claimant has been represented by Mr Lamb QC as well as by Mr Leech. The insurers have continued to be represented by Mr Casey. The focus of Mr Lamb’s argument before us has been on para 35 of the recorder’s judgment, in particular the sentence:

Mr Lamb emphasised the difference between attacking the credibility of a witness and accusing him of fraud. He said that it was impermissible for a court to base a decision on allegations of fraud which had not been put or tested. He took us carefully through the transcript of Mr Chaudhary’s evidence, which he said showed, first, that both Mr Casey and the recorder were aware of the difference; secondly, that Mr Casey shied away from making any positive allegation of fraud; and, thirdly, that the recorder made it clear that he was not disposed to allow such allegations to be made; see in particular what he said to Mr Casey when suggesting to Mr Chaudhray that the Mercedes had never passed through his hands (transcript for 22 January 2004, p 45):

Reverting to the focus of Mr Lamb’s argument, it is clear that it was never specifically put to Mr Chaudhary that his telephone call to the AA on the evening of 6 May 2000 was made in order to provide evidence to support a story that was false. Indeed, it appears likely from the exchanges recorded in the foregoing paragraph that Mr Casey would not have felt able to put such a point, for which he had no evidence. On that footing, relying also on what was said at the costs hearing, Mr Lamb has submitted that the recorder was or may have been influenced by something by which he ought not to have been influenced and that his decision was therefore unfair to Mr Chaudhray and the claimant. For this purpose, he argued, it makes no difference that this court might conclude that there was ample other evidence on which the decision could be supported. He has asked us to order a retrial.

Mr Lamb relied on the judgment of this court (Tuckey, Rix and Jonathan Parker, LJJ) in Co-operative (CWS) Ltd v International Computers Ltd (19 Dec 2003) [2003] EWCA Civ 1955, where the trial judge had found that CWS’s actions were driven, at the highest level and from the very beginning, by a festering grievance to exact revenge from ICL, that CWS as a result dealt with ICL only with reluctance and indeed antipathy, and had from the very first been looking for a way to cause a complete breakdown in their relationship. At para 38 Tuckey LJ, in delivering the judgment of the court, said:

In para 55 Tuckey LJ said that it had been demonstrated that the conspiracy theory was a thread which ran right through the history of the project, as the judge viewed it. Indeed, it was hard to see how it could be otherwise, given that the conspiracy theory amounted to finding that from start to finish CWS (acting by Mr Brydon and Mr Melmoth) was acting in bad faith. In para 85 Tuckey LJ said:

Mr Lamb submitted that the principle of the CWS decision was equally applicable to the present case. I cannot agree. The two cases are of a different order, each from the other. In the CWS case the judge had regarded the supposed bad faith “as providing a critical explanation of events”, his conspiracy theory having run right through the history of the project as he saw it. Here, on the other hand, the insurers’ case, from beginning to end, was one of bad faith against Mr Chaudhary. What seems to have happened is that the recorder went away to consider his judgment and in the course of doing so took a particular view as to what Mr Chaudhary’s motivation in making the telephone call to the AA must have been. That finding may have gone too far and been unfair. But in the light of the recorder’s other findings it would be against all reason to hold that it was a sound basis for saying that the decision as a whole was unfair.

We were also referred to the decision of this court in Vogon International Ltd v SFO (4 February 2004) [2004] EWCA Civ 104. In that case, the trial judge, in awarding the SFO its costs on an indemnity basis, said that his conclusion was that Vogon’s claim was an opportunistic one and was known by the claimants to have no legitimate prospect of success: “Indeed, it may be fair to stigmatise the claim as a dishonest claim.” At para 26 May LJ, with whose judgment the Master of the Rolls and Jonathan Parker LJ agreed, said:

In para 29 May LJ said that he considered that the judge was entirely wrong in the circumstances of the case to make those unnecessary findings. He continued:

Mr Casey was disposed to accept that the present case might be capable of being treated in the same way as the Vogon case. That was a perfectly correct stance for him to take because the insurers’ only interest is to have the substance of the appeal dismissed and the indemnity basis of the costs assessment upheld. But it is a point in which the court has an interest of its own. As my Lady said during the argument on 17 June 2004, it is doubtful whether permission to appeal should be given simply in order for the reasoning rather than the outcome to be challenged. Lord Justice Neuberger shared that doubt. While I do not question the correctness of the course adopted in the Vogon case itself, I do not think that a similar approach is appropriate in the present case, where the basis of the insurers’ pleaded case was an assertion that there was never any genuine and proper transfer of the Mercedes to Mr Chaudhary and it was correctly accepted by counsel for the claimant from the start that the insurers’ allegations amounted to allegations of fraud.

At this stage let it be assumed that the recorder’s finding as to Mr Chaudhary’s motivation in making the telephone call to the AA on the evening of 6 May 2000 was indeed unfair. On that footing the complaint that can be made is that, in a judgment in which the recorder fairly made a number of findings amounting to findings of fraud, he made one unnecessary finding that was not fair. Just as that finding was insufficient to vitiate the decision as a whole, so it is in my view insufficient to allow this case to be treated in the same way as the Vogon case. So to treat it would be disproportionate to any additional harm which might be caused to Mr Chaudhary’s reputation by allowing the finding to stand. Moreover, it would tend to the encouragement of appeals which ought not to be brought.

Mr Lamb’s alternative submission was that the recorder’s findings were in any event against the weight of the evidence. In rejecting that submission, I need do no more than adopt the reasons given by Lord Justice Potter in refusing permission to appeal on consideration of the documents; see para 24 above.

I would dismiss this appeal.

I agree.

I also agree.