QXK (a Protected Party by her Mother and Litigation Friend, RJZ) v Conrad Bair & Anor

At around 0154 hours on 20 June 2021 the Claimants, QXK and Mr Cox, were on Dartmouth Road, Forest Hill, London, saying goodnight to friends before some of them were to get into a taxi after a night out. A dark toned model B6 VW Passat Estate car manufactured between 2006 and 2010 (“the Collision Passat”), driving along Dartmouth Road, hit the Claimants. Both Claimants were thrown into the air, QXK landing on the pavement and Mr Cox further along the road. Both suffered very serious injuries. Mr Cox suffered multiple fractures from which he has happily made a good recovery, especially given their serious nature. QXK was not so fortunate. She suffered a catastrophic brain injury and will require care for life.

The Collision Passat did not stop. There is no evidence from witnesses or CCTV as to its numberplate or the identity of the driver.

On 23 June 2021 at around 0300 hours, a dark toned model B6 VW Passat Estate car manufactured between 2006 and 2010 was found burnt out in Ryan Court, Baldry Gardens, Streatham, SW16 3PJ, about 4 ½ miles from the accident location (" the Burned Passat”). The Burned Passat was insured with the Second Defendant from 7^th June 2021 under a policy in the name Adam McClean and identifying a Conrad Bair as named driver.

It is the Claimants’ case that the Collision Passat and the Burned Passat are the same vehicle and that the First Defendant, Mr Bair, bought the Collision/Burned Passat on 6^th June 2021, registered it in the name of Roman Bair, insured it with a false policy holder but himself as named driver, negligently drove it into collision with the Claimants on 20^th June 2021, arranged for it to be reported stolen on 21^st June 2021 and torched in the early hours of 23 June 2021.

Mr Bair denies that he was driving the Collision Passat or that he has any knowledge of it or the Burned Passat.

The issues for me to decide are (i) whether Mr Bair was driving the Collision Passat and (ii) whether the Collision Passat and the Burned Passat are the same vehicle. The Second Defendant only has an obligation to pay any judgment in favour of the Claimants if injury was caused by Mr Bair’s use of the Burned Passat.

The trial took place over the course of 5 days in May and June of 2025. Mr Bair attended via CVP from Wandsworth Prison where he was awaiting trial for unrelated offences. There were a significant number of delays affecting the progress of the trial, including problems with the technology from the Court’s side, a fire alarm leading to evacuation of the Court, problems getting documents which were produced close to and during the trial to Mr Bair, Mr Bair not being produced due to operational Prison reasons and, on one occasion, another prisoner being produced instead of Mr Bair. All of these delays were frustrating and I would like at the outset to thank all of those involved in the trial and those observing for their patience throughout all of the delays and problems. I would also like to thank the court staff for their assistance with the issues with the technology.

I heard evidence from three police officers involved in the investigation of the accident and arson, PC Stephen Morris, DC Connor Dean and DI Andrews. I admitted supplemental witness statements and documents provided by the police witnesses during the course of the hearing. Mr Bair also gave oral evidence. In addition to the oral evidence, I have read the witness statements of Mr Cox, Mrs and Mr Hajduk and Mr Fouto who were all present at the time of the accident and who gave evidence as to the shocking nature of the accident. I have read the witness statement of Adam McLean, who was named on the insurance policy. None of their evidence was challenged and so their oral evidence was not required. I have also read the evidence of CCTV experts Mr Matt Cass for the Claimants and Mr Stephen Cole for the Second Defendant. The parties agreed that there was no need to call the experts and insofar as there were relevant disputes in their evidence I should determine them on the basis of their written evidence.

The CCTV footage of the accident and the Body Worn camera footage of Mr Bair’s arrest was played in Court and I have had the opportunity of viewing the footage again after the evidence was completed and submissions made.

I will not set out the content of all of the evidence I have seen and heard, but those matters which are the most relevant to my decision.

There is no direct evidence that Mr Bair was the driver of the Collision Passat or the owner or registered keeper of the Burned Passat, or that the two cars are the same vehicle. None of the eye witnesses were able to identify the make or model of the Collision Passat.

The Claimants rely on a series of matters that they say I should make findings of fact about, and on one matter of law, which prove, on the balance of probabilities that the two vehicles are the same vehicle and Mr Bair was the driver.

Mr Bair’s case is simple; he was not driving the Collision Passat and has nothing to do with it or the Burned Passat and cannot comment if they are the same vehicle as a result. The Second Defendant’s case is that the matters the Claimants rely on, insofar as they are proved, are circumstantial and coincidence and the court cannot be satisfied on the basis of coincidence that the Claimants have proved the relevant matters.

Before I address the evidence I heard, watched and read, it is useful to set out the key matters that the Claimants rely up on to provide context to the evidence and findings I make. The matters relied upon are set in the particulars of claim and have not significantly changed, save in one respect since, then.

I set out below the relevant paragraphs of the particulars of claim. References to “the index vehicle” assume that what I am referring to as the Collision Passat and the Burned Passat are one and the same. That is indeed the Claimants’ case. I have added the words [Collision Passat] and [Burned Passat] to show where the evidence specifically relates to one or the other.

“6.

A Volkswagen (VW) motor vehicle badge was found at the scene and the Claimants’ case is that the index motor vehicle [Collision Passat] was (a) a VW Passat S FSI Auto, vehicle registration number AFO6 ZGT [Burned Passat], blue in colour and, (b) was being driven by the First Defendant. The Claimants will invite the Court to find on the balance of probabilities that it was so involved and was driven at the material time by the First Defendant on the basis of the following facts and matters:

(a)

On 05 June 2021 Mr Maqsood Khan sold the index vehicle [Burned Passat] to “Mr Roman Bair” as registered keeper as evidenced by the V5, and “Ali” from OMA Autos Ltd, 205 Gleneldon Mews, London, SW16 2AZ acted as a broker to sell the vehicle on. No person by the name of Roman Bair was known at, or traced, to the address.

(b)

At approximately 01.54 hours on 20 June 2021 the index accident occurred on Dartmouth Road, Forest Hill, London, SE3.

(c)

A VW vehicle badge was found at the scene and CCTV enquiries led the police to believe that the index vehicle was a

VW.

(d)

At 7:30 PM on 20 June 2021 (i.e. later on the same day of the accident) the index vehicle [Burned Passat] was reported stolen, purportedly by a Roman Bair, but from a telephone number associated with the First Defendant Conrad Bair (from Intel checks after previous arrests). The caller (whom the police do not believe was Conrad Bair), gave his name as “Roman Bair” and alleged that the index vehicle [Burned Passat] had been left outside 122 Streatham High Road, London (that being only a few hundred metres from OMA Autos Ltd, 205 Gleneldon Mews, London, SWI 6 2AZ and about 1.3 miles from where the index vehicle was subsequently found burnt out).

(e)

At 13:05 hours on 22 June 2021, Conrad Bair’s Lloyds bank account (see below), was used to pay for a Bolt taxi journey from OMA Autos Ltd, 205 Gleneldon Mews, London, SWI6 2AZ and taken to an address in Hackney. OMA Autos Ltd, 205 Gleneldon Mews, London, SW16 2AZ is approximately 3 minutes’ drive from the accident location and 0.9 miles from the location (see immediately below) where the index vehicle [Burned Passat] was found burnt out.

(f)

At around 03.30 Hours on 23 June 2021 the index vehicle [Burned Passat] was found burnt out in a carport of a block of residential flats, Baldry Gardens, Ryan Court, Streatham (being approximately a 4-minute Drive from OMA Autos Ltd, 205 Gleneldon Mews, London, SWI6 2AZ and about 4.5 Miles from where the collision occurred).

(g)

At 05.55 hours on 19 August 2021 Conrad Bair, the First Defendant was arrested at 1 Crown Point, Beulah Hill, Streatham, SEI9 for possession with intent to supply Class A drugs. That address is approximately 1.3 miles from Baldry Gardens where the index vehicle had been found burned out.

(h)

When he was arrested Conrad Bair initially gave his name as Roman Bair but subsequently interview, disputed that he had done so. During his arrest police officers found a Father’s Day card addressed to the First Defendant from “Roman”, with the handwriting appearing to be that of a young child.

(i)

During a search of 1 Crown Point, a letter was found from the DVLA to “Roman Bair” relating to a BMW vehicle, officers also found the First Defendant’s driving licence and a Lloyds bank account bank card and a credit card name, along with items including mobile phones and a large quantity of drugs.

(j)

At 15.37 hours on 19 August 2021 the police interviewed Conrad Bair under caution for l hr 53 minutes, in relation to variously his connection to the index vehicle, the index accident, the reporting of the index vehicle [Burned Passat] being stolen and subsequently burnt out, to which Conrad Bair responded almost completely “no comment”

In addition, the Claimants rely on the fact that Mr Bair has a son called Roman, that there was a policy of insurance (fraudulently) taken out on the Burned Passat in the name of Adam McLean under which the named driver was Mr Conrad Bair with the same day and month of birth as Mr Bair, but the year of birth being 20 years earlier than Mr Bair’s.

In summary, the Claimants’ case is that there are sufficient links between Mr Bair and the Burned Passat and the Burned Passat and the collision location for me to find on the balance of probabilities that the Burned Passat and the Collision Passat are the same car, and that Mr Bair was the owner and driver of the Collision Passat.

The Second Defendant’s case is that the matters the Claimants rely on are no more than coincidence. There is no evidence to directly link Mr Bair to either the Collision Passat or the Burned Passat, nor to directly link the Burned Passat to the Collision Passat and the claim should therefore fail. The fact that Mr Bair has previous convictions does not mean he was the driver of the Collision Passat, or has anything to do with the Burned Passat.

At this point I should mention that the Second Defendant’s opening skeleton point out that if this claim fails, the claimants will be able to claim for compensation under the MIB untraced drivers agreement. Mr Bright KC objected to this submission, not because it is incorrect, but that it is not something I should take into account. As I said during the hearing, whether or not the claimants can claim under the untraced drivers agreement, and whether that would lead to the same or different compensation to a successful civil claim are irrelevant to the findings I have to make and I give them no weight.

I should also confirm that the standard of proof I apply in making my findings and coming to my conclusion is the balance of probabilities. That is different, and lower, than the criminal standard of proof which would require me to be satisfied so that I am sure. I accept that from the police investigation perspective, they will have been addressing, when deciding if there was sufficient evidence to prosecute, the criminal standard of proof. They also had different evidence to the evidence I had before me. There are two consequences of that. The first is that the decision not to prosecute is not relevant to the decision I have to make. The second is the converse, the decisions I make are not relevant to any decision to prosecute.

The following matters are agreed by the Second Defendant:

The First Defendant is unrepresented and, understandably, has not confirmed which parts of the evidence he accepts. I accept that the facts above are correct.

The Claimants rely as a secondary case on the legal presumption that the owner of a car is the driver of the car in the absence of evidence to the contrary. Mr Bright contends that, in law, there is a rebuttable presumption that the First Defendant, as the true owner of the VW Passat AF06 ZGT, was the driver of it on the night of the collision and that the burden of proof shifts to the First Defendant to prove that he was not the driver. He relies upon the judgment inBarnardv Sully(1931) 47 TLR 557and the subsequent cases ofEnde v Cassidy [1964] Crim. L.R. 595, [1964] 1 WLUK 5and Elliott v Loake[1982] 1 WLUK 802 [1983] Crim. L.R. 36 [1983] C.L.Y. 634, in whichBarnardwas applied. That principle is not controversial. Mr Vincent accepted on behalf of the Second Defendant that this case law establishes that there is a rebuttable presumption that the owner of a vehicle is its driver.

The speed limit at the accident location was 20mph and there were pedestrian design features present. The CCTV of the accident shows that the collision Passat was driving too fast for the circumstances. It shows the moment of collision and the position of the claimants after the collision. It shows the claimants’ friends trying to help them after the collision. Mr Fouto, the taxi driver, found a VW badge in the road after the collision. He picked it up and gave it to a police officer.

The Claimant obtained an expert report from Mr Cass whose opinion in his September 2023 report was, in summary, that the Collision Passat slowed immediately post collision but did not come to a halt. It mounted the pavement to drive around Mr Cox. The Collison Passat was a VW Passat Variant (Estate) (B6) manufactured between 2006 and 2010. The Collison Passat was travelling at an average speed of 34 to 37mph in the 1.76 seconds prior to the collision. It is likely that just before impact the speed was slightly higher. The speed limit was 20mph. QXK was thrown between 9 and 10 meters and Mr Cox about 16 meters. There was a clear line of sight for at least 130 metres on the approach to the point of impact. The car is likely to have been about 100 metres from the collision point when Mr Cox stepped into the road. He notes that there was no light tone central feature on the Collision Passat after the collision, which he would normally expect to see (the “light tone central feature” being a VW badge on the grille of the bonnet).

In a further supplemental report dated January 2025 he comments again on the VW badge found by Mr Fouto and is of the view on the balance of probabilities that it came from the Collion Passat at the time of the accident.

In his supplemental report dated February 2024 he clarified that the term “variant” refers to the fact the VW Passat is an estate car. He was of the opinion that the Burned Passat is consistent with the vehicle seen on CCTV. The damage to the vehicle was extensive and he was unable to determine what damage may or may not have been present prior to the fire. No front badge is visible but it is not possible to know if it was present or not prior to the fire.

The Defendant obtained evidence from Mr Cole. His first report is dated 3 July 2024. It, and his other reports, appear to have been written with reference to the criminal procedure rules and I was provided with copies at trial with the CPR Part 35 experts declaration. No point is taken by the Claimants save that it appears that Mr Cole has given his opinion to the criminal standard of proof. His view for the examination of the CCTV evidence was that the Collision Passat was a VW Passat Estate with approximate year of manufacture 2005-2010. He also notes the VW badge on the front grille is missing.

His second report is dated 13 February 2025. He is of the opinion that it is not possible to conclusively link the recovered items (i.e. the VW badge) with items recorded on the CCTV. He was therefore of the opinion that it was not possible to confirm that the accident Passat had a VW badge prior to the collision or to confirm the recovered badge

The experts signed a joint statement on 28 April 2025 in which they agreed the make and type of the Collision Passat and that post collision there is no evidence of VW badge on the front grille. They agreed the make and type of the Burned Passat. They agreed it was extensively fire damaged. They agreed there was no front badge and that it was not possible to determine if the badge was present at the time of the fire or not. They maintain their difference in respect of the badge found at the scene. Mr Cass was of the view that, from other CCTV footage, a dark tone estate was seen prior to the collision which had a light tone central feature consistent with a VW Passat which travelled toward the collision site followed by 2 other vehicles which is consistent with the “convoy” that can be seen at the time of the collision. He is of the view on balance of probability that the estate seen earlier is the Collision Passat. Mr Cole was of the opinion the CCTV footage was not sufficient to make a conclusive vehicle identification.

Subsequent to the joint statement, by letter dated 16 May 2025, Mr Cass provided a letter regarding the statement from Mr Cole in his report that there were 243,927 Passat variants registered in the UK in 2020. He notes that this figure is for all VW Passats registered in the UK, whatever type (estate or saloon) or colour, or year of manufacture. He comments that as the B6 VW Passat estate 2006 to 2010 would be at least 10 years old it is likely they would form a relatively small part of the total. Mr Cole in a letter dated 19 May 2025 in response clarifies that when he used the tone “variants” he meant all variants of Passats. He comments on the number of colours that the VW Passat B6 was available in and says even mid -tone colours appear dark in black and white (the CCTV footage is in black and white).

In a further joint statement the experts agree that only some of the 243,927 VW Passats would be estates and only some would the B6 chassis. They agree that a light tone such as white, silver or light grey would not appear dark on the CCTV footage.

The police records show that the vehicle was examined on 27 July 2021 in an outside bay at a police garage. The report of the examination notes that there were witness reports of two males, one carrying a green jerry can running away from Ryan Court (where the Burned Passat was set on fire) at about 0330 hours on 23 June 2021 and getting into another car and moments later smoke was seen coming from Ryan Court. The vehicle was noted to be forensically lifted to the police garage and stored outside due to H&S under tarpaulin. The car was noted to be substantially burnt out. The bonnet was missing. It is noted that no VW badges remain. The majority of the paintwork had been burnt off by the fire but a small amount of blue paint (dark) was noted to remain.

I will come back to the issue of the bonnet later.

At the time of the police investigation, PNC insurance checks showed that Maqsood

Mr Ali, the owner of Oma Autos, in a statement to the police said he had agreed to sell Mr Maqsood’s car and someone he refers to as the “tall man”, whose 2009 Golf he had looked after, asked him if he knew anyone selling a big car. He described the tall man as about 6’3”, skinny build, mixed race which short hair and clean shaved face. The tall man bought Mr Maqsood’s car. He says he doesn’t know the tall man’s name or contact details or the names or contact details for the other 2 males who were there at the sale.

At 1930 on Sunday 20 June 2021 a 999 call was made by a man calling himself Roman Bair, reporting the Burned Passat as stolen. The transcript of the call has been agreed between the Claimants and the Second Defendant. The caller said he would have reported it sooner but he thought his son had it, but his son had come and confirmed he didn’t have it. He said it had been parked outside 322 Streatham High Road which he said was his home address. The date of birth given for Mr Roman Bair was 23 June 1965. He stated he had one vehicle key as it only came with one when he bought it. He said he had owned the car for about 9 to 12 weeks. He said the last time he had seen it was 1.30 the previous day. When asked evening or afternoon, he says “evening, no afternoon”. He said he noticed that it was missing at about 1.30, 2 o’clock that day. He confirmed the key had been with him in the house the whole time. He did not have an email address that could be used to contact him.

The police were of the view that the caller did not sound like Mr Bair. Their investigations revealed no one with the name of Roman Bair lived at 322 Streatham High Road.

DI Andrews has said the investigation team carried out enquiries in order to identify Roman Bair but the line of enquiry came to nothing.

The police were able to link the handset which was used to make the call to Mr Bair. I heard a lot of evidence about this and at the start of the trial the link was unclear. In the police interview after Mr Bair was arrested DC Dean put to Mr Bair that call was made using a number ending in 056, which it was said was a number linked to Mr Bair via police checks.

In fact it became clear that it was the IMEI (International Mobile Equipment Identity) number, which is a number which identifies the handset, that was linked to Mr Bair, not the phone number itself. On two previous arrests, Mr Bair had in his possession the handset which was later used to make the call.

Two custody arrest documents were produced during the course of the police evidence. The first shows that Mr Bair was arrested on 7 December 2020 after being seen driving a VW Golf. He was found to be in possession of cannabis. He refused a roadside breath test and a blood sample was taken. The handset was logged as one of his possessions. He was charged with driving over the prescribed drug drive limit on 30 May 2021. He pleaded guilty to this offence on 23 June 2021 and was then subject to an interim disqualification from driving prior to later sentencing.

He was also arrested on 10 April 2021 and found to be in possession of a lock knife. The handset was again logged. The phone was checked and was not listed on the police database as lost or stolen.

The police suspected Mr Bair was involved in the arson and collision. He was arrested at his flat in the early hours of 19 August 2021. The police body worn footage was shown at trial. The Claimants’ case is that when Mr Bair is initially asked his name, he replied “Romaine”. Mr Bair vehemently denies that.

I heard evidence from PC Morris who was the arresting officer. His body worn footage was admitted as evidence. The police entered the flat where Mr Bair was living shortly before 0600 on 19 August 2021. Mr Bair was asleep in bed when the police entered and appeared to be woken by PC Morris. In his statement PC Morris states that he said “what is your name” and Mr Bair said “Romaine”. PC Morris repeated “Romaine” and Mr Bair said “Conrad”. When he asked Mr Bair to confirm his details again he said Conrad Bair. PC Morris said that wasn’t what Mr Bair had said the first time, Mr Bair denied it by shaking his head. PC Morris was asked questions by both Mr Vincent KC and Mr Bair. PC Morris confirmed he was told in the briefing before the arrest that someone called Roman Bair reported a missing vehicle and that Conrad Bair was linked to the vehicle and the address they were going to. He had no independent knowledge of Mr Bair outside of the briefing. He accepted it was not clear that Mr Bair said Roman or Romain in the video. He confirmed he heard him say Romiane and that he recorded what he heard and believed that is what he heard. He stated that it was not possible that he was mistaken.

Mr Vincent questioned him about the information given in the police briefing, putting that certain of the information about Mr Bair’s antecedents is incorrect. PC Morris was unable to give any further details as all he knew of Mr Bair was what he was told in the briefing. He knew that Roman Bair was linked to the address they were going to.

When the police searched the flat, they found three documents which I heard evidence about. The first are two Father’s day cards from Mr Bair’s son, Roman, found in the living room, and the third a letter from the DVLA found in the hallway of the flat.

The two Father’s day cards were addressed to Mr Bair from Roman. DC Dean describes the handwriting appearing to be that of a young child. By the time of trial Mr Bair confirmed he has a son named Roman.

The letter from the DVLA was addressed to Roman Bair, 1 Crown Point, SE19 (the address at which Mr Bair was living) and was in respect of a BMW vehicle reg no YF07 NJ0. It was a letter requiring the vehicle be taxed or a statutory off road notice (SORN) be provided.

The police records show that following the accident a search was done of automatic numberplate recognition cameras in the area.

The Serious Road Traffic Collision Scene Management and Decision Log records that two vehicles were identified by ANPR on the night of the accident, both blue VW Passats. Both were saloons and were later excluded from the investigation.

On 2 July 2021 an email attaching a document said to be showing all the ANPR camera hits from the Burned Passat since 5 June 2021 was provided to the investigation. In that period there are regular sightings in the Streatham area. On 20 June 2021 at 0041 hours it was located on the A205 Brownhill, near an Esso garage, about 16 minutes drive from the accident location. There are no sightings after that date. It was seen on 6 occasions late at night/in the early hours over the period 5 June to 20 June 2025. It was regularly driven around the Streatham and surrounding areas over that period. None of the camera hits were in the accident location area.

A letter from the DVLA to the Claimants solicitors dated 7 September 2023 records that on 20 June 2021, the registered keeper of the Burned Passat was Roman Bair, 322 Streatham High Road, SW16 6HG.

On 7 June 2021 an insurance policy was taken out with Churchill Insurance on the Burned Passat in the name of Adam Mclean, 41 High Street, Seaford. I have seen an undisputed statement from Mr McLean, who does not live in Seaford and is a police officer, that he did not take out this policy. Conrad Bair is a named driver. He is said to be the policyholder’s family member with a date of birth of 11 September 1974 and is a teacher. Mr Bair is not a teacher, nor was he born in 1974 and he is not a family member of Mr McLean. He was born on 11 September.

I have dealt with the evidence given by PC Morris above and will not repeat it. It was slightly surprising that he was 100% certain that Mr Bair said “Romaine” when asked given that he accepted the audio was unclear that there was a dispute, but I do not doubt that he believed that is what he heard at the time.

DC Dean was involved in the police investigation. He signed a witness statement prior to the trial. As a result of the evidence he gave, he gave a further witness statement following his oral evidence and a third witness statement was served prior to closing argument.

DC Dean conducted the interview of Mr Bair following his arrest. During the course of the interview he put it to Mr Bair that the call to report the Burned Passat stolen was made from a number ending in 056 which was attributed to Mr Bair via police checks. In his oral evidence he stated that they had details of the phone number from previous arrest records. He said that the IMEI came back to Mr Bair through a custody database. His explanation was that if a person is in custody and has a phone, then the IMEI number of the SIM is logged on the arrest database. The IMEI number is a number in the phone relating to the SIM. He said the phone call to the police reporting the Burned Passat linked Mr Bair to the investigation of the arson through the phone number.

His second statement corrects this and explains that the IMEI number identifies the handset not the phone number or sim. There is an ISMI (International Mobile Subscriber Identifier) which is a number used by mobile networks to identify each user and device which is stored on the sim.

It was the IMEI number that was consistent between the phone Mr Bair had with him when he was previously arrested and the phone used to report the Burned Passat was stolen. DC Dean agreed that when in the police interview, Mr Bair said the phone number used to call the Burned Passat as stolen had nothing to do with him, that was correct.

In his first witness statement DC Dean says that a DVLA letter to Mr Bair was found in the flat. When another police statement from the investigation was put to him which states that the letter was addressed to Conrad Bair, he agreed that the DVLA letter found was addressed to Conrad Bair not Roman. This concession was not correct and was corrected by his second witness statement which exhibited the letter.

DC Dean also gave evidence that he was satisfied, from the police investigations that “Roman Bair” does not exist in the context of the investigation and it was an alias used by Mr Bair. He says his impression, having listened to the call from the handset, was that the person reporting it had a script of what to say but was not ready for all the questions he was asked. He also gave evidence that police enquiries found that Mr Bair’s Lloyds bank account was used to pay for a Bolt taxi journey on 22 June at 1305 hours from Oma Autos to an address in Hackney. Police investigations also revealed the owner of Oma Autos brokered the deal of the Burned Passat.

DC Dean interviewed Mr Ali. He said he would have had a custody photograph of Mr Bair available but did not show it to him as he didn’t want to prejudice Mr Ali’s evidence. He didn’t want to put an image in Mr Ali’s mind, it would be against police procedure.

He said a search of the police national mobile phone register for the period 3 June 2021 and 3 July 2021 shows the handset was used at 1845 and 1932 hours on 20 June 2021 on the O2 network. The latter call was the call to report the Burned Passat stolen. It

DC Dean attached further documents from Bolt about Mr Bair’s taxi usage to his third witness statement. That included details of a taxi journey on Mr Bair’s account from West Ham Lane to the north end of the Old Kent Road arriving at 0017 on 20 June 2021. If that journey was taken by Mr Bair and is accurate, that would mean he was not at home the night of the accident. It would also show that, at that time, he was not driving the Burned Passat. As Mr Vincent said in closing argument, in order for Mr Bair to be the driver of the Burned Passat when it was seen on the ANPR at the Esso garage in Brownhill at 0041 hours, he would have to be on the south circular 24 minutes after being dropped off in the Old Kent Road, which is not impossible, but he says not likely. The Second Defendant did not object to the witness statements and exhibits being admitted, but given the timing of this evidence being produced, submitted it should not be taken as proving the truth of any of the Bolt journeys save for the one to Oma Autos dealt with in other evidence. Mr Bair had not been able to give evidence about it and the Second Defendant had not had any opportunity to investigate the information.

DC Dean’s evidence contained a number of mistakes which he had to correct. I formed the impression that when he first gave evidence he was not very clear on what an IMEI was and how it linked the two phones, but he gave the best explanation he could, which was that the phone number was linked to the handset. He was wrong about that but I find that he was genuine in his misunderstanding.

The other error he made in relation to the DVLA letter was an erroneous concession in cross examination. His original witness statement was correct. There was also an issue about the address of Oma Autos, which I have not set out. I do not find that to be of any significance. I have to treat his opinions formed in the police investigation with some caution given the errors, but ultimately his opinions are of little weight in my conclusions in any event.

DI Andrews (then DS Andrews) was the lead investigator into the collision. She states that in the investigation, they were unable to identify the driver or type of vehicle. ANPR footage local to the accident was viewed for the period before and after the collision with no results. Due to the damage to the Burned Passat the experts were unable to identify whether it had been involved in a collision. DI Andrews said that Mr Bair bore no resemblance to the three males Mr Khan described as having sold the Passat to. Police national computer checks showed the car was registered to Roman Bair. The telephone used to report the Burned Passat as stolen was not found in the police search of his flat.

She said that the Father’s day cards showed he had a son named Roman who was 6 at the date of the arrest.

Before giving her oral evidence, but having heard DC Dean’s evidence, DI Andrews produced a second witness statement stating that she understood there is a burned out bonnet in the Metropolitan Police storeroom at Catford traffic garage which does not have an exhibit number and she had been unable to locate a record of where it was found or why it was there. She stated that she was told that the fire damage looks similar to the fire damage seen on the Burned Passat but there is no other physical evidence to link the two.

She also gave further information about IMEI numbers consistent with DC Dean’s evidence in his second statement. Both telephone numbers and IMEI numbers can be used to track the location of a device. No IMEI or phone number location data for the handset linked its location to the collision or the arson. She gave evidence that the call from the handset to report the car stolen was made from the Thornton Heath, Croydon area.

In oral evidence she explained that she had not known about the missing bonnet before hearing evidence about it on the first day of trial. She mentioned it after court to a close friend who was a collision investigator and he told her there was a burnt out bonnet at Catford garage. He was not sure it if was from the Burned Passat or what type of vehicle it was from and it had no exhibit number. She did not know why it was there, for how long it had been there or whether it was from a Passat. When she said the fire damage looked similar, that was third hand information from a colleague.

She agreed that vehicle fires are common in London and that they can be caused to deliberately destroy evidence but not to conceal the identity of the vehicle, that is difficult because it is difficult to destroy all the VIN numbers.

She was unaware of the insurance policy taken out with Churchill Insurance in the name of Adam McLean and with Conrad Bair as a named driver at the time of the investigation. She agreed that was potentially important evidence to the police investigation. They couldn’t evidentially link the Burned Passat to the Collision Passat but if they had been able to link it, the policy with Conrad Bair as named driver would have potential importance.

In respect of the ANPR search that was undertaken, she confirmed she was not sure what the parameters were as she didn’t do the search. She agreed there were 6 sightings of the Burned Passat in the early hours in June 2021 prior to the accident, and 9 sightings in the Streatham area. In respect of the ANPR sightings shown on the map in the trial bundle, her understanding was that the nearest ANPR cameras to the accident location were all those identified on the map.

In respect of the CCTV of the accident, the police experts were unable to identify that the car was a VW estate, they were only able to identify a range of possible vehicles.

In respect of her comment in the witness statement that Mr Bair bore no resemblance to the males Mr Khan described, she said that the description given was too generic and not close enough to match to Mr Bair.

She summarised the investigation; they had reasonable grounds to suspect Mr Bair was the driver at the time of the collision but did not have evidence which would be able to prove that to the criminal standard.

I found DI Andrews oral evidence to be considered and careful. She was clear where she did not have knowledge, or where she was not personally involved in the search, and what was the extent of her knowledge. Her comments about the bonnet were an example that she wished the court to have all the possibly relevant evidence before it.

Mr Bair provided a witness statement to the Second Defendant’s representatives in June 2024 whilst he was in prison on remand for various unrelated offences. He says he was not involved in the accident, did not have any involvement with the ownership or control of the vehicle and did not agree to being a named driver on the insurance. He says he had nothing to do with setting fire to the vehicle.

He states that the time of the accident in June 2021, he did not believe he even owned a car as he had been banned from driving under the “totting up scheme” as he had accumulated over 12 points on his licence. He said he had never driven a vehicle whilst disqualified.

He notes the accident happened in the early hours of the morning on Sunday 20^th June 2021. He goes on to say (paragraph 17):

“In June 2021, I was living in an apartment in Crown Point, Upper Norwood, London, SE19 whilst looking after my young children so I would not have ventured out in the early hours of the morning as I would have been in bed asleep.”

He explains he is just over 6’6” tall and that people describe him as a basketball player because of his height and build.

He also says that given the charges against him for which he was on remand, the accident is the last of his worries and if he had anything to do with it he would say so.

He comments that when he was arrested he had wanted to admit to possession of the 1oz of cocaine for his own possession that was seized when he was arrested, but he went no comment on the advice of his solicitor. I note he in fact pleaded guilty to possession of cannabis, another class B drug, and heroin.

He does not mention the Father’s day cards, DVLA letter or insurance in his name in the witness statement.

In respect of his police interview, it was largely a no comment interview. When it comes to the accident, he asks why he is being questioned in respect of it, then reverts to no comment until he was asked if he was the driver when he replied “no, no, no”. When he was asked why he didn’t stop at the scheme he says “I’m not involved in any collisions”. He is then asked, if he wasn’t involved, whether he had any idea where he might have been. He replied, “er. No, I don’t, can I speak to my solicitor, because I don’t know to continue, yeah, can I do that?”. Having spoken to his solicitor he continues to say no comment, but wasn’t asked again where he was on the night of the accident.

The interview moved on to the arson. He was asked where he was at half past three in the morning on 23 June 2021 and replied “probably sleeping” and “just in my bed curled up”. When asked whether he was with anyone and where he was he said no comment.

When the phone call reporting the theft of the Burned Passat was put to him stating that a male that identified himself as Roman Bair made the call, Mr Bair blew a raspberry. When it was put to him (incorrectly) that the call was made from a number ending 056 that has been attributed to him through police checks he said, “never. You’d never, not (blows raspberry) just no way. No way”. He confirmed the phone number was not his. When asked what his number was, he said he can’t remember it although usually he knows it off by heart. He was asked what type of phone he had and gave its details. He was asked if that was the only phone he had and he said, “uh hm”.

The call reporting the car stolen was played to him and he denied it was him who made the call or that he recognised the voice, “no. A hundred percent no. Or a million percent. That’s nothing to do with me”.

When asked if he knew a Roman Bair, he replied no comment. When asked “who is Roman Bair?” he replied, “I’ve got no, its. I don’t know”. When asked about the Father’s day cards and if Roman Bair is his son he replied no comment.

The recording of the arrest was played and it was put to him he replied his name was Roman. The part of the recording where PC Morris says “Romaine” is played and he says “I never use other people’s names it doesn’t make sense. I would use my own name. I would use my own name. I don’t even know who’s (blows raspberry) anyway.”

He answers no comment to almost all the further questions about phones and drugs found at the flat on his arrest. When an exhibit is put to him which the police believed to be a class A drug he said he hadn’t seen it before and when asked if when it was sent off for fingerprints and DNA, would his fingerprint and DNA be on there he replied “one million percent no”. As I have already mentioned, he later pleaded guilty to possession of cannabis and heroin.

In his oral evidence, Mr Bair explained that his witness statement was prepared about 3 years after the accident and at the time he did not have access to his criminal record or driving history. He confirmed its contents were true.

He was asked how old his son was in 2021. He said he is now 5 and was 2 in June 2021 but he didn’t wish to give his date of birth. He said he would give any answers in court but not about his children. He was asked if Roman was able to write the two Father’s day cards. Mr Bair answered that he didn’t know, he was not there when they were written so didn’t know if he wrote them with or without help.

He denied having given the name Romaine on arrest. He said he would give PC Morris “the benefit of the doubt” and that “he’s mistaken. Very very. It’s a very serious detrimental mistake. Very dangerous mistake”.

He was unable to explain why there was a DVLA letter to Roman Bair at his home address. He said that he rented a room in a house of multiple occupation and that, at the time, there were lots of people there. The kitchen, living room and bathroom were communal. He said no one called Roman used that address and that his son did not live at that address. He also said no one else called Bair was at that address.

It was suggested to him that paragraph 17 of his witness statement was a lie. He asked “what is a lie?” It was put to him that in June 2021 young children were not living with him. He agreed they were not, and denied saying they lived with him. He said that Roman was not living there, Roman is one of “plural children”. He would not confirm how many children he had. He cannot remember whether he had children with him at the flat at the time of the accident. He took “sole ownership” of them regularly and would look after them at his mum’s house, his cousins’ or Crown Point. He said it was so long ago he could not say which child or children he had in his possession at the time. He said he did sometimes look after them at Crown Point and sometimes they would sleep in the same bedroom. He disagreed that paragraph 17 was trying to imply he was looking after children throughout June 2021 at Crown Point. He said that his young children stayed at Crown Point irregularly, and Roman stayed there irregularly. When asked if the implication that he was at the address on the night of the 20June 2021, looking after children, was untrue, he said it was highly likely he was there, with or without kids. He said he was not 100% sure that he was looking after children at Crown Point on 20 June but he thinks he was and if he said it closer to the time then “9/10 times that would be correct”.

He said he could not explain the SORN letter addressed to Roman Bair. He said it was not his SORN letter. The house that was raided was an HMO and he rented a room and that there were lots of people there. He explained in the past he had been a bit of a wheeler dealer, and lots of the people at Crown Point were that type and their associates. The kitchen, living room and bathroom were communal. He confirmed there was no one else living there with the surname Bair. He also said that the BMW in the SORN might be a car associated with another flat he lived in on Greyhound Terrace. I note that is the address on his driving licence that the police seized.

He initially said he did not recall what cars he was driving in 2020 and 2021. When his arrest record was put to him, he agreed that he was driving a silver VW Golf reg no GF09 OAD at that time. He said he purchased in in 2009. He could not recall when he stopped driving it or when he bought it.

He agreed he used the Lloyds bank card to pay for a Bolt ride. He could not recall if he went to Oma Autos but had been to Gleneagle Mews. He may have been in that area and ordered a Bolt on his phone.

In respect of the date of birth on the insurance, he said it was not his insurance. For insurance to be valid all the details need to be correct. If he drove a car with him 20 years too old on the insurance that would be an imbecile move as the insurance would not be valid. When asked if he was saying he had been the victim of identity theft he said “One million percent yes”.

In respect of the handset used to make the call to the police, he said he had many different phones, he buys and sells phones, cars and drugs and he doesn’t know when he lost possession of the handset or who it was using it in the call. He thinks it could have been sold or part exchanged for a bike. He denied that the call was anything to do with him, said he knew nothing about the Burned Passat, keys, topping it up with petrol because he had nothing to do with it. When he was asked why he knew it was a petrol car, he said the ANPR documents looked at said it was a petrol car.

In respect of the police interview, Mr Bair said that he had remote advice from a solicitor who advised him to say no comment but when the police said things that he didn’t do he couldn’t contain himself particularly when hearing statements about a collision which was nothing to do with him. He said he was itching to say the car was nothing to do with him, and he did say it; it is not his type of crime. Drugs maybe were, but running people over is not his thing.

It was put to him that it was a lie when he said he was disqualified for totting in his witness statement. He would not initially accept that his witness statement was incorrect when it said had been banned under the totting scheme until he was shown the documents. He said if it was wrong, he has a crazy lifestyle, he had case issues and family issues, loads of different things going on in 2024 when the statement was taken. He was talking about events in 2021 and he can’t be 100% sure of every nook or cranny of what happened in 2021.

Once he was shown the documents showing he was banned on 23 June 2021, he said in fact he knew the ban was coming and knew he was going to plead guilty and be banned so he got rid of his cars. He says he doesn’t run people over and burn cars. He sells drugs, phones, cars and bikes.

When Mr Bair saw the video of the collision, before he was giving evidence, Mr Bair commented that it was obviously terrible, but asked why the Claimants were in the road? When he was asked why he had said that, he explained he was not trying to justify his own actions, but his personal view is that no one should stand in the middle of the road and cabs shouldn’t stop at the side of the road with hazards. The accident was easily avoidable. He simply made an observation.

Mr Bair was giving evidence over CVP from Prison and in difficult circumstances. On one day, due to various issues, he said he did not get any food or drink. He was, for the most part, polite and although he sometimes became, as Mr Vincent put it in closing submissions, animated and cross, that is not something to be held against him in the circumstances.

However, even taking that into account, I did not find Mr Bair a witness who was seeking to help the court and tell the whole truth. He obfuscated and avoided answering direct questions put to him by counsel and would only do so when I asked him to answer on occasion. When it was suggested to him that what was in his statement was not true, he argued about the terminology of lying rather than answer the question.

His answers to questions about the Father’s day cards were an example of that attitude. He must have known whether his son wrote them alone or with help or whether it was someone else (and that, if his son was two, is probably the correct answer), and his answer that he couldn’t have known because he wasn’t there was glib and unhelpful. His response to the questions about why the insurance was in his name, arguing that he wouldn’t take it out with the wrong birth year because it would be invalid, was another attempt to deflect from dealing head on with the questions being put to him.

Insofar as there are disputes between the experts, I prefer the evidence of Mr Cass. Mr Cole does not appear to have applied to civil standard of proof to his evidence. In addition to signing the criminal procedure rules declaration, he more than once refers to not being able to be certain of matters. That is not the civil standard of proof.

He also has provided in his report a statistic about the number of Passat cars in the UK at the time of the accident. It is a one line sentence in his report with no explanation as to its relevance. The overall number of VW Passat’s in the UK is not something that helps me determine (other than it being below that number) the number of Passats which could be the Burned or Collision Passats.

I do not accept Mr Bright’s criticism that his use of the term “variants” in relation to the number of Passats in the UK in the report was misleading as the manufacturer referred to the estate as a variant. Mr Cass used the term variant in his report. Mr Cole did not and so his use of the word variant in its common meaning is not misleading.

I find that the VW badge found by Mr Fouto at the scene was from the Collision Passat. I cannot make any finding as to how many VW Passat estates of the relevant model and tone were in the UK, or England, or London at the date of the accident, save that it was less than 247,000.

I accept Mr Cass’s calculation as to the speed of the Collision Passat. I find that the Collision Passat was driven negligently.

I also find that there was no bonnet on the Burned Passat when it was found in Ryan Court and that, although there is no expert evidence, the accident was such that some damage to the bonnet was likely to have occurred.

Having viewed the body worn footage of the arrest during the trial and again following hearing the evidence, I find the following were the relevant exchanges:

I find on the balance of probability that Mr Bair did not identify himself as Romaine initially. Whatever Mr Bair did say initially was not clear – he had after all just been woken abruptly and so it would not be surprising that he was not speaking entirely clearly. Mr Bair is not said to have used the alias Romaine on any other occasion. There would be no need for Mr Bair to have replied “Conrad” in his second comment to PC Morris if in fact he was giving the name Romaine. For all for those reasons, although I could not hear what was said, on the balance probabilities it was not Romaine, and more likely to be Conrad.

I also find that PC Morris genuinely thought that Mr Bair had said Romaine. PC Morris is certain of what he heard, he did not suggest for example it might have been “Roman” and he misheard. I reject the suggestion that this was an attempt to “gild the lily” as suggested in Mr Vincent’s written closing.

I find that paragraph 17 of Mr Bair’s witness statement is intending to say that throughout June of 2021 he was looking after his young children so he could not have been involved in the accident in the early hours of the morning. His justifications of that paragraph are incredible. I do not accept that this is a paragraph which implies that he thinks he might have been at home on one of the occasions he was looking after one of his young children overnight. It is clearly a statement intended to show why he could not have been the driver of the Collision Passat.

I will not make any findings about the Bolt journeys only mentioned in DC Dean’s third witness statement. In my judgment, given the timing of the evidence, I can only give very little weight to those other journeys. None of the parties have been able to properly consider them and I heard no evidence about them from Mr Bair.

I accept that the timings and distances between the various locations; accident, Ryan Court, Oma Autos and the Esso Garage and Brownhill Road given in the particulars of claim and evidence are broadly correct.

It is correct that there is no evidence directly proving that the Collision Passat is the Burned Passat or that Mr Bair was driving the Burned Passat. There is no direct evidence that the Burned Passat was at the accident location, and no phone data showing the handset was at the collision location or Ryan Court, or that it belonged to Mr Bair at the time of the accident.

Mr Bright argues that there are however sufficient facts to find by inference that the Passats are the same car and Mr Bair was the driver. Mr Vincent argues that such evidence as there exists is no more than coincidence. In order for me to be able to find that the Burned and Collision Passat are the same car there would have to be a much more unique car, for example, a bright pink Lamborghini. He submits in the absence

I reject that submission. I must look at the evidence as a whole and decide what is proved on the balance of probability. I bear in mind that, in looking at the evidence, coincidences, even extraordinary ones, do happen regularly and are just coincidence. I do not accept that the level of detail in Mr Vincent’s example would be required for me to find, on the balance of probabilities the Collision Passat and Burned Passat are the same car.

Therefore I must consider the evidence that there is and findings that I have made and come to a view on whether the Claimants have proved their case on the balance of probabilities. In summary the following evidence is relevant to that determination:

I find that the description of the tall man is consistent with Mr Bair. I bear in mind it is not entirely consistent and DI Andrews thought it was not a good match. The evidence about the 2009 registration Golf is consistent, although I accept that the VW Golf is a common car.

Mr Bair had no good explanation why the DVLA SORN letter in his son’s name was sent to his address. It is most likely in my judgment that he registered the BMW in his son’s name. He said the car may have been associated with a previous address of his. That does not explain how the letter was sent to his address, and makes it more likely it is because he was using his son’s name to register the car.

The Burned Passat was also registered in his son’s name. The call to report it stolen was made using a handset he had owned not long before the call. That same car had his name on the insurance. When he was asked by the police if he knew Roman Bair, he said no comment and when asked who he was, he said he didn’t know. He clearly must have known he had a son called Roman Bair and he was not honest in his answer.

The car was reported as stolen on the day of the accident. The person reporting it knew the details on the V5 and that there was only one key. They knew those details were fake as the call was not made from the address the caller stated and the caller was not Roman Bair. There must have been a reason the car was reported stolen by someone using false details and was then torched a few days later. That reason cannot have been a genuine desire to report a stolen car to find it or be able to make an insurance claim. The details given, the name and address are false, the insurance policy was in a fake name and there was no contact detail for any follow up other than the phone number, which was not used again after that day.

The suggestion, not made by Mr Bair, but agreed to in questioning that he has been the victim of an identity theft to explain the insurance document seems to me less likely than that he took out the insurance.

The fact that Mr Bair has a previous conviction for driving without insurance means he is someone who has been prepared to drive without insurance in the past. He is also someone who has on at least two occasions to have driven below the standard of a reasonably prudent driver. Of course that does not mean of itself that he did on this occasion without more. Also I accept that he must have had insurance in respect of the VW Golf in December 2020 or he would have been charged with driving without insurance.

Mr Vincent submitted that I should take into account that Mr Bair has pleaded guilty to every office he has been convicted of and has never been found untruthful by a jury. I do not think that takes me very far. Certainly the majority of the offences he has pleaded guilty to are the sort where he was caught red handed.

In my judgment Mr Bair’s evidence as to where he was on the evening of the 20^th of June was not truthful. He might have been “gilding the lily” as it is difficult to prove one is at home when there are no witnesses. On balance however I find he was trying to hide where he in fact was. He did have an opportunity to tell the police in interview where he was but did not do so. His evidence in his witness statement and in court were not credible.

His evidence in his witness statement that he was banned on a totting basis before the accident was in my judgement an attempt to exculpate himself and to minimise the seriousness of the ban. I do not accept saying that the ban was for totting rather than drug driving is a mistake. That is not the sort of thing that can be easily mistaken.

I should make it clear that I do not reject Mr Bair’s evidence because he has a criminal history, nor because he was not a calm and measured witness. I reject his evidence for the reasons I have set out. He was not, as Mr Vincent submitted a witness whose answers were reasonable such that the points put to him melted away. He deflected, obscured, and distracted rather than answering honestly and fully.

I find on the balance of probabilities that Mr Bair was the tall man who bought the Burned Passat in his son’s name and insured it with himself as a named driver. I find that he arranged for the call to be made to report the Burned Passat stolen shortly after the collision and arranged for it to be burned.

I find that the proximity in time and place between the collision, the report of the stolen vehicle, with the caller giving the fake details of the registered owner from a handset owned by Mr Bair, and in the context of the car being registered in his son’s name and with a policy of insurance with him as a named driver is on the balance of probabilities more than coincidence. I find that the Burned Passat was the same vehicle as the Collision Passat and that Mr Bair was driving it at the time of the collision on 20 June 2021. If I am wrong about the fact that he was driving, given I find that he was the owner of the vehicle and that he has failed to explain who was driving it at the time of the collision, he has failed to rebut the presumption that he was the driver, and is presumed to be the driver.

In the circumstances, I give judgment for the Claimants.

I have been asked to add a postscript to this judgment to formally record the brief oral extempore judgment I gave on costs at the hearing to hand down judgment.

The Claimants sought liability costs against the First Defendant on the indemnity basis pursuant to CPR 44.3(1)(b). Mr Bright referred me to the summary of the principles to be applied in the exercise of my discretion to do so in Volume 1 of the White Book

It is repeatedly stressed that each case turns on its own facts and that no additional rules or presumptions should be created, Mr Bright did not seek to rely upon any analogous authorities. He did however cite the recent Court of Appeal authority of Thakkar and others v Mican and another [2024] EWCA Civ 552, solely because, between paragraphs 18-25 of his judgment at pages 4202-4204, Lord Justice Coulson considered it convenient to summarise the general principles applicable to the award of indemnity costs.

Mr Bright submitted that the First Defendant’s conduct in actively defending this claim based on a dishonest account was conduct that meant costs should be awarded on the indemnity basis.

The Claimants are not entitled to costs against the Second Defendant, but, pursuant to its contingent liability under section 151 of the RTA 1988, the Second Defendant will be liable to pay whatever costs are agreed or assessed in relation to the First Defendant.

On behalf of the Second Defendant Mr Vincent did not resist an order for the costs of the issue of liability to be paid by the First Defendant on the indemnity basis.

In the exercise of my discretion and considering the general principles applicable to the award of indemnity costs, I do order that the First Defendant pay the costs of the Claimants on the issue of liability on the indemnity basis. For the reasons set out in my judgment I find that the conduct of the First Defendant falls outside the norm in the sense of being outside the ordinary and reasonable conduct of proceedings. Mr Bair's defence was based on dishonesty, which, in my judgment, is a factor justifying the award of indemnity costs.