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Ruth Needham

Ruth Needham

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A rational judgement?

AWARE04/12/2013
Fraud Aware Issue 2

The case of Hussain v Hussain & Aviva finally concluded on 24 September 2013 with a discontinuance by the claimant at the re-trial. Partner Ruth Needham, who handled this case on behalf of Aviva, working closely with Angela Lockwood, explains the outcome of the case and clarifies that whilst the case does not set a precedent in relation to the organisation or consideration of similar fact evidence, it does highlight the importance of Judges providing a rationale for their judgements.

The retrial of Basarat Hussain took place at York County Court on 23 and 24 September 2013. This was the conclusion of a long and convoluted litigation which has lasted for more than four years. The original trial stemmed from a case which formed part of an operation called Operation Solanio. Solanio consisted of 37 linked cases. 36 of the cases were discontinued or struck out, however the 37th proceeded to trial.

The incident took place in January 2009 when Adil Hussain’s vehicle (Aviva’s insured) collided with a vehicle driven by the claimant, Basharat Hussain. A claim was made for vehicle damage, car hire costs and personal injury totalling £9,500. The original case was heard at Halifax County Court by District Judge Spencer. After three days of evidence from the claimant and defendant, the district judge found in favour of the second defendant, Aviva. The claimant then proceeded to apply for permission to appeal which was obtained and proceeded to the Court of Appeal (CoA).

At the CoA, there was criticism of the judgment provided by District Judge Spencer which did not detail how his conclusions had been drawn. Significant concerns were raised in relation to the engineering evidence, medical entry records, circumstances of the alleged incident and also in relation to the first defendant themselves. Unfortunately, whilst there was a rationale behind his findings, District Judge Spencer had not provided the detail within his judgment. Following a 2½ hour hearing, it was ruled that the matter needed to proceed to a retrial. As a result, the claimant and second defendant (the first defendant took no part in any part of the litigation) attended at York County Court on 23 September 2013.

The retrial

There has been significant discussions in articles by those not involved with the case in relation to the inferences that can be drawn from the CoA in allowing the appeal. However, it is interesting to note that most commentators have failed to acknowledge that this matter was listed for a retrial. The claimant was not provided with judgment.

At York County Court the claimant gave his evidence on the first day of court, this was followed by evidence from his sister who he claimed was in the vehicle at the time of the incident. Following the provision of this evidence, on the second day of trial and before the court could continue in the afternoon, the claimant sought to discontinue his claim. After much negotiation, this was accepted and the claimant walked away from a claim that he stated in the CoA as being unfairly adjudicated upon.

Conclusion

There are several points of interest from this case:

1. The circumstances and facts of the case are very much fact specific

2. The Court of Appeal did not rule that any of the evidence provided by the second defendant was inadmissible, ineffective or inappropriate

3. Although the court had concerns with the rationale provided by the district judge in his judgment, it did not go so far as to find for the claimant or provide judgment for the claimant

4. The matter was ordered for a retrial

5. At the retrial the claimant discontinued one and a half days into a three day trial as it became evident that his evidence was simply not going to be accepted by the court

This case does not set a precedent in relation to the organisation or consideration of similar fact evidence. It does, however, highlight the need for judges to clarify the rationale for some of their decisions that occur in cases where there are significant issues in relation to credibility and strong allegations, such as fraud, are being determined. This outcome should act as a reminder to defendants in these matters to ensure they clarify the specific areas which allow the judges to find fraud and make such a determination in their closing submissions at trials such as these.