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Keoghs Insight

We keep you up-to-date on emerging market issues and their impact on the insurance sector, through a variety of publications, events and our leading market initiatives.

Author

Gemma Wilkinson

The case for exclusion

Blogs||22/03/2017

In our latest fraud rings blog, Gemma Wilkinson examines a recent Court of Appeal case and asks when, if ever, it is appropriate for a party to be excluded from their trial whilst another party gives evidence.

The original trial

In our example case, Keoghs were instructed by an insurer to defend an alleged road traffic accident. The policyholder was alleged to have reversed his vehicle into two unattended motorcycles which resulted in the motorcycle owners pursuing claims for vehicle damage, hire, storage and recovery.  

The insurer had concerns that the collision was staged, based on the fact that the claimants and policyholder could be associated with the same address and there were numerous inconsistencies in the claimants’ evidence.  As a result, the insurer sought to defend the matter all the way to trial.

Due to these inconsistencies, the counsel for the insurer made submissions at the start of the trial that one claimant should be excluded from the court whilst the other claimant gave evidence.  Despite some objection from the claimants’ counsel, the trial judge was in agreement and excluded one claimant whilst the other gave evidence.  

During cross-examination further inconsistencies were unearthed which resulted in the claimants’ claims being dismissed on the basis that they had not proven their claims.  A further finding that the claims were fraudulent was then made. 

The appeal

Following the trial, the claimants appealed the decision. This appeal was on a number of grounds, however the most contentious issue was whether the claimants’ exclusion from court had rendered the trial unfair contrary to Article 6 of the European Convention on Human Rights.

Having looked at the facts of the individual case, the Court of Appeal found that the trial judge should not have excluded the claimants as she did. The one fundamental problem was that the judge had not given any weight to the claimant’s entitlement to be present throughout the trial.

Furthermore it was found that her reasoning for the exclusion was sparse, giving little indication as to how she considered the exclusion would assist in determining the validity of the claim before her.  

The Court of Appeal held that it was extremely difficult to contemplate there being any sufficient reason for taking this course of action in such a case.  At the very least, it was likely to leave the excluded claimant with a sense of injustice and it risked the entire trial being impugned on the basis that the exclusion had rendered it unfair.  

However, despite confirming this had been the wrong course of action to take, the Court of Appeal was not persuaded that the exclusion of one claimant was automatically fatal to the entire trial, suggesting that the fairness of the trial depended upon the proceedings as a whole.

As both claimants had been represented by the same counsel throughout and the excluded claimant had only missed one element of the trial, the Court of Appeal held that there had still been a fair trial.

Summary

In this appeal the claimants were still found to have not proven their claims, as the Court of Appeal’s observations did not necessitate any alteration of the trial judge’s order.

Effectively the Court was not persuaded to hold that, for a party to have a fair trial, there is an absolute requirement that he or she has the opportunity to be present throughout the entirety of the hearing.   

Nevertheless, they were satisfied that the starting point must always be that a party is entitled to be present throughout the hearing of a civil trial.  In fact, the Court of Appeal confirmed they could see very few, if any, circumstances in which it would be appropriate to exclude a party from court against their will.

As a learning point it is always worth bearing in mind that a claimant has the right to refuse removal from their own trial whilst others give evidence. However, the option is available for voluntary exclusion, should it be requested.

For more information please contact:
Gemma Wilkinson
Fee Earner Assistant
T: 01204 678822
E: gwilkinson@keoghs.co.uk