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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Da Costa & Anor v Sargaco & Anor  EWCA Civ 764 (14 July 2016)
Cite as:  EWCA Civ 764
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ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HER HONOUR JUDGE BAUCHER
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE FLOYD
MR JUSTICE MOYLAN
| DA COSTA & ANR
|- and -
|SARGACO & ANR
Mr James Laughland (instructed by Keoghs LLP) for the Respondents
Hearing date: 9th March 2016
Crown Copyright ©
Lady Justice Black:
"Accordingly, they will be so excluded and, in due course, if anything arises from it, any prejudice, if there is such prejudice, which I do not find there is, can be remedied by the fact that they can apply for a transcript."
The judgment on the claim
"Well firstly, did the accident happen? I found their respective accounts so inconsistent as to be implausible."
"I find that the accounts are so inconsistent the claimants have not proved their case".
i) "I do not accept that the claimants were sharing a room at 43 Conway Road. The first time they said so was in live evidence and it is contrary to Mr Melim's statement…..The evidence of the claimants is therefore inconsistent in that regard from one of their own witnesses."
ii) "I simply do not accept Mr Da Costa's evidence that he was living at 43 Conway Road." The judge supported this finding with reference to other documents in which Mr Da Costa's address was given as a property in Lansdowne Road and then, from 27 July 2011, Norman House.
iii) "[W]hilst multiple hearsay Ms Pereira stated that Mr Sargaco, the first defendant was her friend and had never owned a car or a bike."
iv) "Mr Da Costa said in his statement that he had seen the first defendant in the area but he had not spoken to him yet in evidence he said he had not. In short, in my view he was seeking to distance himself from the first defendant."
v) "[Mr Da Costa's] moped … has been involved in another road traffic accident on the 22nd November 2011 involving another member of the Brazilian community. It may be a coincidence but it is a factor I am entitled to weigh up standing back as I do and looking at the evidence overall as I am required to do."
vi) "I have also taken note of the fact that Mr Da Costa notwithstanding that he has only been in the country since at the earliest the middle of 2010 and his witness statement is dated November 2013, has had another three road traffic accidents in addition to this claim. Whilst he may be a very unlucky individual that is quite a remarkable number of accidents".
The grounds of appeal
Curtailing and interrupting closing submissions/pre-determination of the result
Reference to extra authorities in the judgment
The Hussain case
The judge's approach to the allegation of fraud on the particular facts of this case
i) the naming of Ms Pereira as a named driver on Mr Sargaco's insurance policy and her denial of any knowledge of the vehicle in question or the insurance policy;
ii) the use of a number of different addresses by the claimants;
iii) the existence of DVLA records which did not show the claimants as the registered keepers of the motorcycles;
iv) a denial that the alleged accident would have rendered the motorcycles uneconomical to repair and that replacement vehicles were hired;
v) the transfer of the motorcycles to new owners after the alleged accident, suggesting that they were not damaged beyond economic repair;
vi) the involvement of the first claimant's motorcycle in a further accident in November 2011 when, after ownership of it had been transferred to someone else, it was parked in a supermarket car park and knocked over and written off by a car.
The exclusion of the first claimant whilst the second claimant gave his evidence
"55.The guarantees set out in the substantive articles of the Convention, like other guarantees of human rights in international law, are mostly expressed at a very high level of generality. They have to be fulfilled at national level through a substantial body of much more specific domestic law. That is true in the United Kingdom as in other contracting states. For example, the guarantee of a fair trial, under article 6, is fulfilled primarily through detailed rules and principles to be found in several areas of domestic law, including the law of evidence and procedure, administrative law, and the law relating to legal aid….
56. The values underlying both the Convention and our own constitution require that Convention rights should be protected primarily by a detailed body of domestic law. The Convention taken by itself is too inspecific [sic] to provide the guidance which is necessary in a state governed by the rule of law….
57. …. The importance of the [Human Rights] Act  is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate."
(1) The domestic cases: Al Rawi
"The closed material procedure excludes a party from the closed part of the trial. He cannot see the witnesses who speak in that part of the trial; nor can he see closed documents; he cannot hear or read the closed evidence or the submissions made in the closed hearing; and finally he cannot see the judge delivering the closed judgment nor can he read it."
Furthermore, although the special advocate system could mitigate these flaws, it could not cure them all, as he explained in the following paragraph.
"Under the common law a trial is conducted on the basis that each party and his lawyer sees and hears all the evidence and all the argument seen and heard by the court. This principle is an aspect of the cardinal requirement that the trial process must be fair, and must be seen to be fair; it is inherent in one of the two fundamental rules of natural justice, the right to be heard (or audi alterem partem, the other rule being the rule against bias or nemo iudex in causa sua)."
and to paragraph 30 where the Master of the Rolls said:
"In our view, the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it, at any rate in relation to an ordinary civil claim, unless (perhaps) all parties to the claim agree otherwise. At least so far as the common law is concerned, we would accept the submission that this principle represents an irreducible minimum requirement of an ordinary civil trial. Unlike principles such as open justice, or the right to disclosure of relevant documents, a litigant's right to know the case against him and to know the reasons why he has lost or won is fundamental to the notion of a fair trial."
"22. For example, it is surely not in doubt that a court cannot conduct a trial inquisitorially rather than by means of an adversarial process (at any rate, not without the consent of the parties) or hold a hearing from which one of the parties is excluded."
"It is one thing to say that the open justice principle may be abrogated if justice cannot otherwise be achieved. As Lord Bingham of Cornhill said in R v Davis  UKHL 36,  AC 1128 at para 28, the rights of a litigating party are the same whether a trial is conducted in camera or in open court and whether or not the course of the proceedings may be reported in the media. It is quite a different matter to say that the court may sanction a departure from the natural justice principle (including the right to be present at and participate in the whole or part of a trial). Scott v Scott is no authority for such a proposition. How can such a step ever satisfy the requirements of justice? And if the court does have the power to deny a litigant this fundamental common law right, in what circumstances is it appropriate to exercise it? These are the questions that lie at the heart of this appeal."
(2) The domestic cases: The Attorney General of Zambia v Meer Care & Desai
"43. …Was the judge justified in holding that the appellants would each receive a fair trial on the basis proposed in his judgment? In my opinion, he was. It is submitted that a defendant in a civil trial is entitled to attend the trial so as to be able, if he wishes, to give evidence and to give instructions. Other things being equal, I would accept that submission, but that is not an absolute right.
44. The irreducible minimum is that every party is entitled to a fair trial, both under Article 6 of the Convention and at common law. The question in any case is whether, viewed as a whole, the trial process is fair. I am not persuaded that a party to civil proceedings has a right to be physically present throughout. No authority has been cited to us in support of such a proposition."
(3) The parties' submissions on the domestic cases
(4) The ECHR cases
"The Commission first of all recalls that the question whether court proceedings satisfy the requirements of Article 6(1) must be considered on the basis of the particular circumstances of each case and can only be determined by examining the proceedings as a whole, that is to say only once they have been concluded. One cannot rule out the possibility, however, that a particular element could be so decisive in itself that the fairness of the trial could be determined at an earlier stage."
Lord Justice Floyd:
Mr Justice Moylan: