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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Singh v Yaqubi [2013] EWCA Civ 23 (29 January 2013) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2013/23.html Cite as: [2013] EWCA Civ 23 |
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ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HHJ COWELL
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE BLACK
and
SIR STANLEY BURNTON
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HARDIP SINGH |
Appellant |
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- and - |
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RASHED YAQUBI |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Jonathan Hough (instructed by Keoghs LLP) for the Respondent
Hearing dates : 11 December 2012
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Crown Copyright ©
Lord Justice Pill :
"In this case the claimant [appellant] is a partner with one Mr Bharat Thakrar in a property development business. One of the fleet of seven vehicles owned by the partnership was involved in a minor accident".
Bias
"1. . . . This case raises the moral question which has occasioned me much anxious thought, whatever answer the law gives to the facts of this case which has occasioned further even more anxious thought, whether the ever increasing insurance premiums of the ordinary motorist, particularly one struggling to make ends meet and needing a modest car to go to work, should in some part be used so that the rich may continue at no expense to themselves to be filled with good things that they think they need.
2. . . . The claim was defended both as to liability and as to quantum. The temptation to give a perverted judgment on liability against the claimant in order to avoid all questions of quantum was very great, but conscience and my judicial oath meant that the temptation was successfully resisted."
"Well, what a testament that is to the superficial if not false nature of the warped values of society, or as the claimant himself put it 'that is how these people see it', referring to a list of celebrities which I will come to in a moment that the claimant had as his clientele. That is a very subjective view which, as I shall explain, is unsupported by detailed evidence."
I need not recite the list of celebrities named.
"The discipline imposed by judges who have the acumen and experience to detect greed and slapdash claims procedures will in my opinion do much more to forestall abuse than a dusting-down of the old law of champerty."
Judge Cowell stated:
"In these circumstances there is the obvious feature that the party signing the hiring form is ordering riches for himself at another's expense, and that is just the sort of situation which the courts ought to investigate rather carefully, whether it is right that that other, who is bearing the expense, ought properly to bear that expense. The law, it seems to me, ought to be, if it is not already, that that other is entitled to be presented with clear factual evidence of need on the part of the claimant."
The judge then quoted a verse from Hilaire Belloc's poem about the elephant who is supplied with many tons of hay a day. ("The Elephant" from the Bad Child's Book of Beasts). This was said by Mr Williams to amount to facetious comment.
Hire Charge
"The need for a replacement car is not self-proving."
Lord Mustill added:
"Thus, although I agree with the judgments in the Court of Appeal that it is not hard to infer that a motorist who incurs the considerable expense of running a private car does so because he has a need for it, and consequently has a need to replace it if, as the result of a wrongful act, it is put out of commission, there remains ample scope for the defendant in an individual case to displace the inference which might otherwise arise."
In the Court of Appeal, Steyn LJ had stated, ([1993] 3 All ER 321, 337h):
"For my part I readily accept that a plaintiff must show a reasonable need for a replacement car in order to recover special damages."
"What evidence would anyone acting for him tell him to put together in order to prove his need of the hire car? It seems to me that, properly advised, he would give evidence about two things: first, he would give evidence of his actual use prior to the accident of his vehicle damaged in that accident, perhaps by reference to his diary that he would exhibit, though he would not have to exhibit any document for he might remember where he was during that period. At any rate, if there are documents he would refer to them and he would say 'I am reminded by looking at my diary which is exhibited that I made four journeys to such and such a place with all my equipment in my car; the following week I did this, that or the other' and so on. Then, secondly, one would advise him as a claimant to say what use he made of the hired vehicle, for example, where did he go during the course of the hire. It is the equivalent of all that which is completely missing in this case. That is why it is a particularly difficult one."
"The partnership of which the claimant was one of two partners, the other being Mr Thakrar, had at their disposal six other cars, all of a fairly prestigious make, and they were all insured under the same policy of insurance."
The judge dealt in detail with the circumstances of the partnership, its members, and their families and their use of the vehicles. The vehicles were a Mercedes CL600, a convertible Rolls Royce, a Bugatti valued at €1.4 million, a Range Rover Overfinch, a Mercedes S320 Cdi and a Porsche traded in on or about 7 August 2009 for a Range Rover Sport HSE. The judge noted, though it is of little relevance, that oral evidence emerged that in the autumn of 2010 the damaged Rolls Royce was traded in for a new one costing £320,000. The judge continued, at paragraph 19 and following:
"19. It was also pointed out by Ms Beslee [counsel] that there was no detail given of the user of each of the other vehicles and when they were used. It may be that to ask for that could be said to be going a little far, but what in my judgment is a very crucial omission is that nobody has given evidence of the actual user of the Rolls-Royce that was later damaged during period before 6th August for example, for the period of a month or six weeks before, or whatever, and nobody has given evidence of the actual user of the hired Rolls-Royce during the period of hire. It would not have been difficult by reference to a diary at work, even to the memory of those who were at work, as to what use was made, and in particular which celebrity was carried on what occasion before the accident in the car that was later damaged, from one place to another and similarly which celebrity was carried in the hire car. There is no evidence of that at all.
20. The claimant himself was abroad, as his old passport showed, in Turkey between 22nd and 28th August 2009 during the hire period. He believes that the Rolls-Royce was used during that period, he said, for moving clients around. But there is no detail of that at all. All I have is evidence of a very general kind. His, the claimant's, belief is that the Rolls-Royces were used for these purposes but I have no detail whatever.
21. . . . there is no evidence in any of the witness statements of any detail of the user, so this case does raise the extremely important point: should not the same sort of evidence which I have given in the hypothetical case of the plumber have been given in this case? If it had been given, if only at the witness statement stage, exhibiting such documents as there are (and I am aware that not everything is to be proved by documentation), such as statements by the drivers identifying the celebrities and dates, if that sort of evidence had been given it would give substance to the evidence of the claimant, even that the need was to maintain his image.
22. It is said by Mr Delaney on behalf of the claimant that, according to the passage in Lord Mustill's speech, the burden is on the defendant to prove the absence of need. I do not think that the situation is as simple as that. It seems to me that if the inference can be displaced that there is need, in this case by the fact that there were six other vehicles, then the burden must shift to the claimant to give detail, in this case in particular of what the actual use of the Rolls-Royce before the accident was and what it was of the hired car afterwards. All that evidence is only within the knowledge of the claimant, and so the defendant is simply questioning in the dark, and the defendant has no evidence to adduce about the matter at all and has no material upon which to contradict the generalised statements made by the claimant. So that is the huge gap in this case. Courts ordinarily can only act on factual evidence, and particularly when a claim is for such a large sum it seems to me that the cogency of the claimant's evidence should be all that much greater."
"In view of the paucity of the evidence and the lack of detail I find that there is no clear evidence upon which I can conclude that need has been proved . . ."
"I do not know what it had to do with the partnership."
The judge made no specific findings as to which of the vehicles, if any, could have substituted for the damaged Rolls Royce; his conclusion was based on the absence of evidence of need.
"The injured party cannot claim reimbursement for expenditure that is unreasonable. If the defendant can show that the cost that was incurred was more than was reasonable, either by proving that the claimant had no use for a replacement car in part or at all, or because the car hired was bigger or better than was reasonable in the circumstances, the amount expended on the hire must be reduced to the amount that would have been needed to hire the equivalent to the damaged car. As Lord Mustill put it in Giles v Thompson, '…The need for a replacement car is not self-proving'."
The respondent has not proved, Mr Williams submitted, that the appellant had no use for a replacement car in part or at all. In the circumstances, to find for the respondent was to indulge him. Mr Williams accepted, however, that a claimant must show reasonable need for a replacement car in order to place a burden of proof on the defendant. He submitted that sufficient evidence was given by the appellant to demonstrate that need had arisen.
"It might have been possible for Park Lane to have called evidence to establish that it had or would have had the need to use the limousine showing what his diplomatic commitments were or were expected to be and explaining what the substitute car was in fact used for. But it did not bother to do so. Consequential loss, special damage of the type here, does not prove itself."
Conclusions
Lady Justice Black :
Sir Stanley Burnton :