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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Beacon Insurance Company Ltd v Maharaj Bookstore Ltd [2014] UKPC 21 (9 July 2014) URL: https://www.bailii.org/uk/cases/UKPC/2014/21.html Cite as: [2014] 4 All ER 418, [2014] UKPC 21 |
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[2014] UKPC 21
Privy Council Appeal No 0102 of 2012
JUDGMENT
Beacon Insurance Company Limited (Respondent) v Maharaj Bookstore Limited (Appellant)
From the Court of Appeal of the Republic of Trinidad and Tobago
before
Lord Mance
Lord Sumption
Lord Reed
Lord Toulson
Lord Hodge
JUDGMENT DELIVERED BY
Lord Hodge
ON
Wednesday 9 July 2014
Heard on 24 March 2014
Appellant Peter Knox QC Prem Prasad Maharaj Robert Strang (Instructed by Bircham Dyson Bell LLP) |
Respondent Michael A Quamina (Instructed by Ross and Co Solicitors LLP) |
LORD HODGE:
"If any claim be in any respect fraudulent, or if any false declaration be made or used in support thereof, or if any fraudulent means or devices are used by the Insured or any one acting on his behalf to obtain any benefit under this Policy, … all benefit under this Policy shall be forfeited."
The documents, which Beacon challenged, were:
(a) four bills (totalling $59,580.04) from "K & S Bookstore" ("K&S"), which Beacon said did not exist;
(b) a statement from Unique Services to which a calculation had been added suggesting that $12,188.22 had been paid, when the correct sum was $2,985.72;
(c) a document from Lexicon Trinidad Ltd ("Lexicon") in the sum of $27,127.10, which was a quotation for books which MBL had not purchased;
(d) three bills from Caribbean Children's Press Ltd ("CCP") which totalled $11,641.60 in respect of purchases from CCP by another bookseller, S & R Bookstore ("S&R"), two of which had been altered to suggest that MBL was the purchaser; and
(e) a bill from Mohammed Bookstore in the sum of $6,726.60 in respect of purchases made by Moy's Bookstore ("Moy's") but altered to show MBL as the purchaser.
The legal proceedings
(a) In relation to the K&S invoices, he accepted Mr Ganga-Bissoon's evidence that he and his wife traded interchangeably as K & S Bookstore, K & S Maharaj Bookstore and K & S Maharaj Variety Store, that he often sold books to his brother, and that he had sold MBL the books listed in the disputed invoices.
(b) In relation to Unique Services, he accepted Mr Maharaj's evidence that he had tallied the items in the statement to make the calculations easier to understand and had made a mistake in calculation which was not intended to deceive.
(c) In relation to the Lexicon quotation, he accepted Mr Maharaj's account that he had found it in the purchase file and had asked an employee if the books had been purchased. When told that they had been, he wrote "paid cash" on the quotation. The judge held that Mr Maharaj had been careless rather than reckless in including the quotation in MBL's tally.
(d) In relation to the three CCP invoices, the judge accepted the evidence of Mr Maharaj and Mr Ramnarine that S&R often purchased books for MBL and that the invoices were for books which S&R had bought and then sold to MBL. The Judge accepted Mr Maharaj's evidence that he had altered the invoices to reflect the fact that MBL owned the books and not for any fraudulent purpose.
(e) In relation to the invoice from Mohammed Bookstore, he accepted the evidence of Mr Maharaj and Mr Moy that Moy's had bought books, including those listed in the disputed invoice, for MBL, which was why MBL had the invoice. He accepted Mr Maharaj's evidence that he had put his name on the invoice to reflect the fact that he had paid for the books and that he had no fraudulent intention.
The role of an appeal court
"I Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion; II The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence; III The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court."
In that case, Viscount Simon and Lord Du Parcq (at pp 486 and 493 respectively) both cited with approval a dictum of Lord Greene MR in Yuill v Yuill [1945] P 15, 19:
"It can, of course, only be on the rarest occasions, and in circumstances where the appellate court is convinced by the plainest of considerations, that it would be justified in finding that the trial judge had formed a wrong opinion."
It has often been said that the appeal court must be satisfied that the judge at first instance has gone "plainly wrong". See, for example, Lord Macmillan in Thomas v Thomas at p 491 and Lord Hope of Craighead in Thomson v Kvaerner Govan Ltd 2004 SC (HL) 1, paras 16-19. This phrase does not address the degree of certainty of the appellate judges that they would have reached a different conclusion on the facts: Piggott Brothers & Co Ltd v Jackson [1992] ICR 85, Lord Donaldson at p 92. Rather it directs the appellate court to consider whether it was permissible for the judge at first instance to make the findings of fact which he did in the face of the evidence as a whole. That is a judgment that the appellate court has to make in the knowledge that it has only the printed record of the evidence. The court is required to identify a mistake in the judge's evaluation of the evidence that is sufficiently material to undermine his conclusions. Occasions meriting appellate intervention would include when a trial judge failed to analyse properly the entirety of the evidence: Choo Kok Beng v Choo Kok Hoe [1984] 2 MLJ 165, PC, Lord Roskill at pp 168-169.
"This is traditionally and rightly explained by reference to good sense, namely that the trial judge has the benefit of assessing the witnesses and actually hearing and considering their evidence as it emerges. Consequently, where a trial judge has reached a conclusion on the primary facts, it is only in a rare case, such as where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached, that an appellate tribunal will interfere with it. This can also be justified on grounds of policy (parties should put forward their best case on the facts at trial and not regard the potential to appeal as a second chance), cost (appeals can be expensive), delay (appeals on fact often take a long time to get on), and practicality (in many cases, it is very hard to ascertain the facts with confidence, so a second, different, opinion is no more likely to be right than the first)."
"… not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.
… If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should … be let alone."
"The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders and rulings being challenged."
"The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."
"[T]he importance of the part played by those advantages in assisting the judge to any particular conclusion of fact varies through a wide spectrum from, at one end, a straight conflict of primary fact between witnesses, where credibility is crucial and the appellate court can hardly ever interfere, to, at the other end, an inference from undisputed primary facts, where the appellate court is in just as good a position as the trial judge to make the decision."
See also Lord Fraser of Tullybelton, at p 263G-H; Saunders v Adderley [1999] 1 WLR 884 (PC), Sir John Balcombe at p 889E; and Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2003] 1 WLR 577 (CA), Clarke LJ at paras 12-17. Where the honesty of a witness is a central issue in the case, one is close to the former end of the spectrum as the advantage which the trial judge has had in assessing the credibility and reliability of oral evidence is not available to the appellate court. Where a trial judge is able to make his findings of fact based entirely or almost entirely on undisputed documents, one will be close to the latter end of the spectrum.
The judgment at first instance
"while there were areas in which Seunarine Maharaj was not as precise as he should have been, I have formed the view that he is generally to be regarded as a credible witness."
"this witness was one of the most honest witnesses that one can find, a reputable businessman of considerable experience who has carried on [a retail] business [for] the past 37 years and on whose testimony I place substantial reliance. This witness struck me as someone who was independent and would not perjure himself nor be complicit in any way in assisting the claimant to recover insurance monies to which it was not entitled."
The judge held that Mr Moy's testimony provided "a great deal of support" to Mr Maharaj's evidence that his alteration of the invoice to show MBL was the purchaser was designed not to deceive but to reflect the onward sale of the books from Moy's to MBL.
"Having seen Moy, Ganga-Bissoon and Ramnarine, it seems inherently impossible that each individually, or all collectively, would have been willing to perjure themselves or been complicit in perpetrating a fraud on insurers."
The Court of Appeal's judgment
Conclusion