Smith v Stratton & Anor [2014] EWHC 1749 (QB) (26 June 2014)

Neutral Citation Number: [2014] EWHC 1749 (QB) Case No:A90LS131 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION LEEDS DISTRICT REGISTRY The Court House Oxford Row Leeds LS1 3BG 26 June 2014 B e f o r e : His Honour Judge Saffman sitting as a Judge of the High Court ____________________ Between: MR GRANT SMITH (BY HIS LITIGATION FRIEND DEBORAH BONNER) Claimant and – (1) MR ANTHONY STRATTON (2) MOTOR INSURERS BUREAU Defendants ____________________ Mr A Axon (instructed by Harrison Clark LLP) for the Claimant Mr W Featherby QC (instructed by Thursfields) for the Second Defendant The First Defendant neither appearing nor being represented Hearing date: 21 and 22 May 2014 Draft circulated 28 May 2014 Judgment handed down 26 June 2014 ____________________ HTML VERSION OF JUDGMENT HANDED DOWN 26 JUNE 2014 HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Introduction This is a liability only trial. If the claimant establishes that either the first or second defendant or both are liable the matter will go forward to further directions leading to a trial on quantum. At about 6:40 PM on 6 January 2011 the claimant, Mr Grant Smith was very seriously injured when the Vauxhall Astra in which he was a back seat passenger struck a vehicle that was parked on Fairfield Avenue, Bramley Leeds. The driver of the Astra was Anthony Stratton, the first defendant. At the time Mr Stratton had the benefit of insurance cover under a policy issued to a Mr Jason Craig by Tradewise Insurance Ltd. As I understand it, the policy was a motor trade policy covering unnamed drivers such as Mr Stratton. On the 28 August 2012 Tradewise obtained a declaration pursuant to section 152 (2) Road Traffic Act 1988 entitling it to avoid the policy for non-disclosure of material facts and misrepresentations made to Tradewise before the policy was incepted. The result was that Mr Stratton became an uninsured driver. However by virtue of clause 5 of the Motor Insurance Bureau (Compensation of Victims of Uninsured Drivers) Agreement 1999 (the 1999 Agreement) and subject to certain exceptions about which this case is concerned, the MIB became responsible to meet Mr Stratton's liability to 3rd parties such as the claimant to the extent that any judgment in favour of such 3rd party was unsatisfied. Clause 5 of the 1999 Agreement states as follows: (1) Subject to clauses 6 to 17, if a claimant has obtained against any person in a court in Great Britain a judgment which is an unsatisfied judgment then MIB will pay the relevant sum to, or to the satisfaction of, the claimant or will cause the same to be so paid. (2) Paragraph (1) applies whether or not the person liable to satisfy the judgment is in fact covered by a contract of insurance and whatever may be the cause of his failure to satisfy judgment. This It is assumed that Mr Stratton, who has taken no part in these proceedings, is a man of straw and unable therefore to satisfy any judgment against him. Even if he were not impecunious it seems likely that the damages appropriate to compensate the claimant for his injuries would be of a magnitude that would test the pockets of any but the very wealthy. That is because, tragically, this accident has resulted in this young man, who was aged 20 when the accident occurred, suffering a brain injury which has caused significant physical impairment as well as significant cognitive, intellectual and executive impairment. He is represented in this litigation by his mother as his litigation friend because the accident deprived him of capacity to conduct these proceedings himself. By virtue of Article 75 of the Articles of Association of the MIB, notwithstanding that Tradewise voided the policy, because it had issued a certificate of insurance to Mr Craig, it is obliged to indemnify the MIB in respect of its liability pursuant to the 1999 Agreement. Of course, since the obligation on the MIB only arises in the event that the driver of the vehicle fails to satisfy a judgment there can be no liability on the MIB, nor therefore on Tradewise as the Article 75 insurer, if there is no judgment against Mr Stratton. As I have said, Mr Stratton has taken no part in these proceedings and has therefore not proffered any evidence to gainsay the claimant's contention, set out in the Particulars of Claim that the accident occurred because he drove negligently. On the contrary, the evidence indicates that he told the police during an interview after his arrest following the accident that he drove like a "knobhead". The most graphic description of the quality of his driving is contained in the evidence of 2 police officers, PC Machell and PC Duffy. Their statements are respectively at pages 99 and 104 of the court bundle. They were in a police vehicle; they came across the Astra driven by 1st defendant. The Astra sought to accelerate away from the police vehicle and failed to heed a signal to stop. It drove in excess of 50 mph in a 30 mph zone when the roads were damp. It signalled one way but went another. It failed to heed the police vehicle's sirens and flashing blue lights, it took a corner at such a speed as to skid sideways and ultimately the 1st defendant lost so much control that the vehicle collided with a parked vehicle. The second defendant's position Mr Featherby QC who represents the MIB (and which has the benefit of an order of 18 March 2013 entitling it to act on behalf of the first defendant to such extent as may be necessary to protect its interests) does not seek to contend that Mr Stratton did not drive negligently nor does he dispute that the claimant came to be injured as a result of such negligent driving. In normal circumstances therefore a judgment in favour of the claimant would inevitably follow. However in this case the MIB argue that notwithstanding Mr Stratton's admittedly appalling driving and further notwithstanding that the claimant's injuries were caused by the driving, nevertheless the claimant is not entitled to judgment against Mr Stratton on the principle of ex turpi causa non oritur actio [1] . This is the principle that the courts will not lend their aid to a litigant so as to enable him to obtain a benefit from his own crime or reparation for the consequences of his own culpable criminal act. What is the basis for this contention? It is that at the time of the accident the claimant and Mr Stratton, along with 2 other passengers in the car, Lewis Shenbanjo and Joe Thackery were involved in drug dealing on the basis of a common or joint enterprise and the car was integral to that activity and further that the accident occurred when there were attempting to evade apprehension by the police. That contention, namely that the claimant and the 1st defendant were involved in illegal activity and/or seeking to evade lawful apprehension, also forms the basis of the 2nd limb of the defence of the MIB. Clause 5 of the 1999 Agreement indicates on its face that it is subject to the exceptions, the MIB prays in aid the exception provided by clause 6 of the agreement as absolving it from the obligation to meet any unsatisfied judgment in this case. I shall come to clause 6 shortly but of course clause 6 is only engaged in the event that the Court rejects the ex turpi causa defence. If that defence succeeds then there is no judgment. Without a judgment in favour of the claimant the MIB have no obligation to the claimant at all. The relevant part of clause 6 stipulates as follows: "Clause 5 (requirement to pay unsatisfied judgment) does not apply in the case of an application made in respect of a claim of any of the following descriptions …. … a claim which is made in respect of a relevant liability described in paragraph (2) by a claimant who, at the time of the use giving rise to the relevant liability, was voluntarily allowing himself to be carried in the vehicle and, either before the commencement of his journey in the vehicle or after such commencement, if he could reasonably be expected to have alighted from it, knew or ought to have known that – (iii) the vehicle was being used in the course or furtherance of a crime; or (iv) the vehicle was being used as a means of escape from, or avoidance of, lawful apprehension …". If therefore the 2nd defendant establishes on the balance of probabilities that during the journey in the motor vehicle which ultimately resulted in the accident the claimant was; (1) voluntarily allowing himself to be carried in the vehicle (2) he knew or ought to have known that the vehicle was being used in the course or furtherance of a crime and/or as a means of avoidance of lawful apprehension (3) that that knowledge was gained, or ought to have been gained, either before the commencement of his journey or after the commencement of his journey and, in the latter case, he could reasonably be expected to have alighted from the vehicle after the reality dawned or ought to have dawned. then clause 6 provides an exception to the principle that the MIB must meet an unsatisfied judgment against the uninsured driver of that vehicle. Mr Axon, counsel for the claimant draws particular attention to the fact that clause 6 provides an exception to the general principle of compensation provided by European directives on motor insurance to which clause 5 is intended to give effect. This is because, as an exception to the general principle, it must be construed restrictively. That proposition has the backing of judicial authority viz White v White 2010 UKHL 19 paragraph 23 and Delaney v Pickett and Tradewise 2012 1WLR 2149 paragraph 48. It is not a proposition from which Mr Featherly demurs. The claimant's position The claimant's position is that he does not accept that he was involved in any drug dealing during the journey (or indeed at all). As for the contention that he knew or ought to have known that the car was being used as a means of escape from or avoidance of lawful apprehension, his position is that he does not accept that he had any reasonable opportunity to alight from the vehicle before the car chase began or before the accident occurred. Mr Axon points out that the claimant was a backseat passenger in a 2 door car and both front seats were occupied. As for the ex turpi causa defence, as well as it not be accepted by the claimant that he was engaged in the commission of a crime namely drug dealing, it is also not accepted that his injury was caused by criminal activity (if any) but rather that his injury was incidental to any such activity. In other words, the injury was not caused by any act of drug dealing; it was caused by the tortious act of Anthony Stratton in driving the car negligently. Rather than the claimant denying that he was involved in any criminal activity it is the claimant's position that it is "not accepted" that he acted as the 2nd defendant asserts. This is because, by reason of the injuries he sustained, the claimant contends that he has no recollection of how he came to be in the Astra or what he was doing in it. This is why Mr Axon submits the claimant has not given evidence, either oral or indeed written. In a part 18 request at page 39e of the bundle the solicitors for the MIB sought the following information from the claimant; "What was the purpose of the journey before the chase that led to the accident? What was the point of origin of the journey? When did it start? What was the destination? At the time of the claimant expects to reach the destination? Was the route that had been taken and was yet to be taken between the points of origin and destination?" The reply was as follows "The claimant was walking on a friend's house to his mother's for dinner. The vehicle stopped and he was offered a lift. He was aware that the vehicle was going somewhere on the way to his mother's (possibly the 1st defendant's girlfriend's). Fairfield Terrace was not far from the point at which the claimant was picked up. Accordingly; - The purpose of the journey (as far as the claimant is concerned) was a lift to his mother's house. The claimant commenced the journey at a point between his friends home and his mother's house near to Fairfield Terrace, Bramley The claimant is unable to provide a specific time, albeit shortly before 6:40 PM (time of the accident) The claimant's destination was his mother's house He expected to reach his mother's house before 7 PM when he was due to have dinner The claimant has no recollection of the route taken. He believes that the vehicle may have been used to visit the 1st defendant's girlfriend although he is unsure." The reply is signed, below a statement of truth, by Mrs Bonner the claimant's mother and litigation friend. It will be noted that there is no qualification or suggestion that the claimant himself has no recollection of how or why he was in the car. Indeed where there is an absence of recollection as to the route taken, the Part 18 reply makes that clear. Mrs Bonner has filed a witness statement from page 85. It refers to the Part 18 response and it has to be said that it somewhat rows back from the assertions made in it. The statement asserts that the Part 18 reply was the result of Mrs Bonner and the claimant trying to piece together the events of the day leading up to the accident. As a result of them piecing together those events it was what the claimant and his mother "think" happened. On the other hand, at paragraph 7 of the statement she suggests that the claimant has only given the impression of having no real recollection of events since she signed the Part 18 reply. Mr Featherby argues that an adverse inference ought to be drawn from the failure of the claimant to give evidence. I shall go into that in more detail later but it is Mr Axon's contention that in any event the claimant's evidence is not necessary. As I have said, the burden is on the second defendant to establish that the 1st defendant has an ex turpi causa defence to which the 2nd defendant can avail itself and, if necessary, the existence of the criteria for the engagement of clause 6 of the 1999 Agreement. Mr Axon's contention is that it having been acknowledged that the claimant was injured by the negligence of the 1st defendant, the claimant is not obliged to assert or prove anything further. It is for the 2nd defendant to prove the existence of the defence. This is a reversal of the usual burden of proof whereby a claimant must establish his claim but Mr Featherby, quite rightly, acknowledges that the burden is indeed on him. Agreed Factual Matrix Let me clear that there is no direct evidence that claimant was involved in drug dealing and Mr Featherby does not assert that there is. The case of the defence is that the surrounding circumstances justify, on balance, a finding that he was involved in drug dealing. Indeed, Mr Featherby argues that the surrounding circumstances, when taken as a whole, inexorably lead to that conclusion. Mr Axon disputes that. He says that such a conclusion would involve an unjustifiable leap. These surrounding circumstances are; Convictions First, it is contended that all the occupants of the car had previous, and have had subsequent, convictions. I do not need to set them all out in detail, tab F of the bundle sets out all the criminal antecedents. The claimant was reprimanded in March 2006 for possession of cannabis and cautioned for possession of cannabis on 19 January 2012. In the intervening period and indeed subsequently he has attracted convictions for dishonesty, violence and other antisocial behaviour. On 11 December 2010 he failed to attend for/remain for the duration of a follow-up assessment following testing for a class A drug on 22 November 2010. He has also admitted to Dr Scheepers, a consultant neuropsychiatrist whom he saw in July 2012 that he had used cannabis and cocaine. That is in Dr Scheepers's report at page 214 paragraph 4 .17. Mr Stratton has an even longer record than the claimant including 3 drug related offences between 2002 and 2008. In May 2002 he was convicted of possession of cannabis resin, as he was in September of the same year. In September 2008 he was convicted of producing cannabis. Mr Featherby concedes that the sentence suggests that production must have been on a small scale. Aside from drug offences, there are multiple offences of dishonesty as well as others. Mr Shenbanjo also has a lengthy record of offences that vary in nature but include 3 drug offences, one of which, in August 2012, was conspiracy to supply cannabis. Mr Thackery also has a lengthy record. In March 2010 he was sentenced to a term of imprisonment for robbery in which his co-defendant was Mr Stratton. In September 2012 he was convicted of conspiring to supply cannabis. That is his only drug related offence. The point made by Mr Featherby is that all the occupants of the car had a familiarity with cannabis which in the case of 3 of them extends to either production or conspiracy to supply. He argues that that implies a familiarity with the industry surrounding cannabis and that this is a building block in the picture which when added to the other building blocks upon which he relies inevitably will reveal that the claimant and his friends in the car were drug dealing. I note of course that the convictions in the case of Shenbanjo and Thackery for conspiracy to supply post date the accident with which I am concerned. I also do not overlook that in fact the claimant has no convictions in respect of drug offences other than that acquired in December 2010 but that he has a reprimand and a caution for possession one of which considerably predates the accident and the other post dates it by about 12 months. Mr Axon argues that these convictions cannot lead to an inference that the claimant was involved in drug dealing from the car immediately before the accident. Indeed he asserts that the police evidence goes the other way. He points out that at this time there seemed to be a fairly detailed investigation of a number of characters in this locality who the police suspected were involved in drugs. I was referred to the statement of DC Nathallo Tasker at page 112 of the bundle. While the police were interested in Mr Shenbango and Mr Thackery, they are not interested in either the claimant or Mr Stratton. No charges were brought against Messrs Shenbango or Thackery in respect of events on 6 January 2011 even though they appear to have been firmly in the sights of the police. When Shenango appeared at Leeds Crown Court in August 2012 and pleaded guilty to conspiracy to supply cannabis it was in relation to supply on a date in March 2011, not 6 January 2011 when the accident occurred. Included in some helpful written submissions Mr Axon rhetorically asks why (1) the claimant, and for that matter, Mr Stratton were not subject to the extensive investigation concerning other characters in the locality (2) despite extensive enquiries involving about 25 police officers no charge at all has been brought against anyone who was in the car in connection with the events of 6 January apart from driving offences against Mr Stratton. The answer he gives is that there is no evidence at all of a joint enterprise for the supply of drugs during the evening of 6 January 2011. Mr Featherby's response is that the prosecuting authorities will inevitably look at matters from a different perspective. First they have to factor in the need to prove drug dealing to the criminal standard and secondly the public interest in a prosecution where, as in this case, the protagonists may well have been taken off the street for other reasons. The presence of cannabis at the scene The second building block upon which Mr Featherby relies is the fact that cannabis was found at the scene of the accident. There were 2 small plastic bags of cannabis found immediately outside the Astra and one in the rear passenger foot well of the car. One package weighed 1.19 g the 2nd 1.07 g and the 3rd 1.74 g. That is 4.73 g and the street value was about £40. DC Tasker in his report suggests that 1g can produce about 5 joints so this quantity equates to between 23 and 24 joints. Mr Featherby argues that this is more than could reasonably be expected for personal use of 4 young men. DC Tasker indicates that the effect from cannabis will last for between 2 and 4 hours. Why, Mr Featherby asks, would four men in the early evening require enough cannabis to keep them high for between 11 and 22 hours each? On the other hand, the street value is only £40 and the quantity is relatively small. Furthermore, as Mr Axon points out, there is no evidence that they were in the claimant's possession prior to the accident. Indeed no drugs were found on him and his injuries were such that he was hardly in a position to discard any drugs that may have been about his person. In any event the conclusion urged by Mr Featherby is only one of a number none of which is more probable than the others. Perhaps for example these drugs had just been bought for personal consumption. Mr Featherby argues that the quantity discovered after the accident may have been small but this is likely to be because there had been earlier sales which had depleted the stock of cannabis. This leads to his next building block The presence of cash All the occupants of the car were unemployed yet at the time that they were detained by the police Shenbanjo had £140 in cash on him and Thackery had £215 in cash. The claimant and Mr Stratton in fact had no cash on them. Mr Featherby argues that it is much more likely than not that, in the absence of any other source of income other than state benefits, this cash was the product of drug peddling. Indeed he argues that it is indicative of the fact that that evening they were dealing in commercial quantities of cannabis because £355 equates to 41g or over 200 joints. Mr Axon argues that this is a non sequitor. There is no basis for concluding that the money is the proceeds of dealing. £355 of anybody's cash equates to 41g of cannabis but that does not mean that the £355 that anybody may have in their wallet is the proceeds of dealing. Mr Axon contends that the fact that the men were unemployed cannot lead to the conclusion, even on balance, that any money they have is the proceeds of dealing. In any event, he argues that even if it were that does not assist the second defendant in establishing, as it must, that the dealing took place that evening in this vehicle and during the fateful journey. Finally he emphasises that in fact the claimant had no cash on him. It is worth mentioning at this point an additional issue touching upon the length of time that the claimant and his friends were in the vehicle before the chase. In his police interview after the accident Mr Stratton suggested that he picked up the car at between 6.25 and 6.30 that evening. The accident happened within 10 to 15 minutes. His interview (which commences on page 126a) indicates that between picking the vehicle up and the start of the police chase he refuelled car and picked up some of the passengers. Mr Axon suggests that it would be impossible to sell £355 worth of cannabis in the relevant time on the assumption that the cannabis was divided into wraps similar to those picked after the accident. Mr Featherbys point is that it is simply not accepted that the vehicle was picked up by Mr Stratton at between 6.25 and 6.30 and he suggests that the fact that the car was refuelled and passengers had to be picked up from other areas of Leeds is in itself indicative that this car had been in the possession of Mr Stratton for far longer than he suggests. Making off Mr Featherby argues that the fact that Mr Stratton made off at speed when the police vehicle driven by PC Machell was sighted is yet another indicator leading to the conclusion for which he contends. He reminds me that Mr Stratton was legitimately driving the car, that he had a valid licence and, certainly at the time, he was covered by insurance. In those circumstances why seek to escape from the police? His answer is that it was because the occupants were engaged in illicit activities namely drug dealing. Mr Axon argues that the claimant had nothing to do with the decision to flee but that in any event that decision was not prompted by the presence of drugs. At page 124 is the police report which summarises Mr Stratton's police interview. It reports that Mr Stratton indicated that he had been pulled over twice the previous day and that he was going to show the police what he could do. This was why he decided to make off. The notes made during the police interview by the interviewing officer are obviously fuller. Initially, 8 minutes into the interview Mr Stratton stated that when the presence of the police vehicle was pointed out to him he asked his passengers " what shall I do ?" the response was " Blow them ". In street vernacular this is a reference to the tyres. If they are blown it means that the vehicle speeds up to the point where the tyres can blow or generate smoke. Later on in the interview Mr Stratton suggested that nobody "egged" him on to flee but nobody discouraged him indeed the passengers said " it's up to you". The notes also suggest that Mr Stratton repeated at this point in the interview that the passengers used the phrase " blow them" There is clearly an inconsistency between the suggestion that nobody egged him on and that he was told to "blow them". I do not overlook that in the notes during the interview he makes reference to having been stopped the previous day. Mr Axon points out that there is no evidence that the claimant encouraged Mr Stratton to flee and clearly, Mr Stratton having made that decision, there was no opportunity for the claimant to alight from the vehicle. The witness statements of PC Machell and Duffy do not suggest that they became interested in this vehicle initially because they suspected that it was engaged in drug dealing. The clear message from the statements is that they became interested as a result of the way in which the car was being driven. When ultimately arrests were made at the scene of the accident they were on the basis of suspected theft of the vehicle. In an e-mail attached to PC Machell's statement at page 103 the police officer records that he noticed that Shenbanjo was a passenger and was "well linked to drug dealing in the area" but that does not appear in his original statement. The evidence of Mr Nichols Other than the evidence of Mrs Bonner, to which I shall come, Mr Nichols was the only other live witness. His witness statement is at page 89. He is the solicitor instructed by the MIB and indeed Tradewise. His evidence is significant because he interviewed Mr Stratton in prison with a view to seeking to establish the purpose of the fateful journey. Mr Stratton appeared to be quite (but not fully) cooperative. I say this because he was prepared to commit some things to writing but not others. Mr Nichols statement attaches Mr Stratton's signed statement on page 93 and a typed transcript appears from page 91. I should record that Mr Axon does not suggest that Mr Nichols has in any way made up what he states he was told by Mr Stratton. His position is simply that the evidence is hearsay and Mr Stratton is inherently unreliable by reason of his very character and also because what he says to Mr Nichols is inconsistent with what he told the police. Let me first record the salient details of Mr Stratton's statement. (1) At paragraph 5 he says that an arrangement was made for all 4 to travel in the Astra together. This is in distinction to the contention on behalf of the claimant set out in the Part 18 reply that the claimant was fortuitously offered a lift while walking home from a friend's house. (2) At paragraph 7, he says that within a short time of the police car appearing the occupants of the car told Mr Stratton to " smoke 'em". This phrase has the same meaning as " blow 'em". I now turn to what Mr Stratton had to say to Mr Nichols but would not commit to writing. This is at paragraph 5 of Mr Nichols statement. Mr Nichols took a note of what he was told either contemporaneously or very shortly after the information was given to him. I can do no better than simply replicate what he said in his statement. Mr Stratton told him; All of us were dropping off drugs; £20 deal (Henry [2] ) 3 bags skunk. About £20 each 15 minutes dealing. Sold one. Just done a deal. I handed it out the window. I took money. Don't know who handed it to me. Saw police. Jo mentioned it drove away. Contd turns (?). wheels span on mud. All said "smoke 'em" In his submission document Mr Axon makes a number of points about this evidence as follows; The evidence is directly contradicted by his own interview under caution. It is correct that Mr Stratton said in an interview to the police he was not aware of any drugs in the car. Mr Featherby's point is that for obvious reasons that is hardly surprising. On the other hand a reference to " smoke 'em " or " blow 'em" appears in both his interview with the police and his interview with Mr Nichols -- as does his intimation that that suggestion came from his passengers. His evidence is not consistent with the plea entered by Shenbanjo on 15 August 2012. It will be remembered that the plea was in respect of the supply of drugs on a date in March. The point that is made is that he has not been charged with an offence of supply in January. I do not see how Mr Stratton's evidence however is inconsistent with the plea entered by Shenbanjo. The fact that he was only charged with supplying in March cannot mean that he was not supplying in January. True it is he may not have been charged because he did not supply in January but he may equally not have been charged because the prosecuting authorities felt that, whilst he probably was, they could not meet the criminal standard of proof. He may equally not have been charged because the prosecuting authorities felt there was no point. I note that he received a 15 month term of imprisonment in any event. His (Mr Stratton's) own signed statement provided for Mr Nichols does not support the account relied upon in Mr Nichols statement. The fact is that the account in Mr Nichols's statement supplements Mr Stratton's statement. So far as I can see there is nothing in the written statement which is inconsistent with Mr Stratton's remarks to Mr Nichols recorded in paragraph 5 of Mr Nicholas statement. Mr Stratton has not been called and the claimant has been deprived of testing his evidence. This is true and of course that factor must feed into the weight to be attached to his evidence. It should however be recorded that a hearsay notice was served giving notice that Mr Stratton would not be called. The claimant did not take advantage of the provisions of CPR 33.4 which provides that the recipient of a hearsay notice in circumstances such as this may apply to the court for permission for the recipient of the notice to call the maker of that statement for cross-examination. Nevertheless I accept that the primary responsibility for calling a witness is on the party who wishes to adduce that evidence and that in this case the claimant is entitled simply to put the second defendant to proof. The hearsay notice provides no explanation as to why Mr Stratton has not been called. The notice says that it is not, or may not be, reasonably practicable to secure the attendance of Mr Stratton (and others) at trial. One has to question how confident a lawyer could have been that Mr Stratton would turn up even if served with a witness summons. Nevertheless I fully accept that the reason specifically goes towards the weight to be attached to his evidence by virtue of section 4 (2) (a) Civil Evidence Act 1995. The 2nd defendant has evidently had access to and assessed this witness but consciously decided not to call him. There is considerable overlap between this attack upon the evidence of Mr Stratton and the previous 2 grounds. I accept that the 2nd defendant could have made arrangements to produce him on the basis that if he failed to turn up then they could rely on his evidence is hearsay. On the other hand, I have already referred to CPR 33.4. The statement relied upon is not even signed Insofar as this relates to the matters set out in paragraph 5 of Mr Nichols statement, he has offered an explanation as to why that is and it has not been suggested that that explanation is in any way misleading. The statement omits obvious and important material relating to the claimant It seems to me that this is neutral. However I accept that in so far as it makes no specific reference to the claimant I would not be entitled to draw adverse inferences against the claimant. Finally let me make it clear that it is agreed that this evidence is first hand hearsay, not, as Mr Axon originally suggested, second hand hearsay. That is relevant to the question of the weight to be attached to it. I shall come to that again shortly. The failure of the claimant to give evidence. Mr Featherby deals with this in paragraph 37 et seq of his opening skeleton He points out that there is no rule that a protected party should not give evidence and that albeit the claimant apparently has no recollection of the car journey resulting in his injury or how and why he was in the car, there are other issues about which he could have been questioned which may have been illuminating. Mr Featherby sets these out in paragraph 41. They are to do with the claimant's lifestyle, sources of income, relationship with the other 3 occupants and the likelihood of the accuracy of his belief as to why he was in the car. Mr Featherby asks me to draw adverse inferences. In my view, as a matter of law I am entitled to do so [3] . The issue is whether it is appropriate to do so in this case. Mr Axon says that it is not. There is no dispute that Mr Stratton's driving was negligent and there is no issue of causation. On that basis therefore it is argued that the claimant need not give evidence even if he could recollect the events in question. This, argues Mr Axon, is all the more the case where he has no recollection at all of the salient details. The argument, he contends is strengthened by the fact that he clearly lacks capacity and that in the circumstances it would not be usual to give evidence. Mr Featherby argues that it is not unusual for a person under disability to give evidence. It is also right to say as a matter of law that capacity of the purpose of consideration of whether a party should be a protected party is "issue based" and involves the question of an assessment of the ability to make decisions in relation to litigation. It does not follow that somebody who lacks capacity and is a protected party therefore lacks the ability to give evidence. Mr Featherby draws my attention to the fact that it is far from conclusive that the claimant is unable by virtue of his injury to give evidence. His biography that he gave, unassisted, to Dr Scheepers is not broadly inaccurate, even on the evidence of Mrs Bonner. It also occurs to me that evidence from the claimant might have been at least as valuable as the evidence from Mrs Bonner who was called. Some of the arguments mustered in relation to the claimant for not calling him apply equally to her namely that she has no first hand knowledge of why the claimant was in the car and how he got into it and in so far as the point is made that the claimant can sit back and put the second defendant to proof then that would suggest that no evidence need be called for him. Accordingly I turn to Mrs Bonner. Mrs Bonner She accepted that the claimant's account to Dr Scheepers of his biography was broadly correct (except that part criticising her parenting). Her position was however that he was not consistent; he could just as easily have given a completely false account to the doctor. She accepted that the account that she gave in the Part 18 reply of the claimant's movements on the evening in question leading up to his entering the car may have been wrong. No effort appears to have been made to locate the friend at whose home he had apparently been. She could not explain why her Part 18 reply did not make clear that it was the result of a piecing together of information and was thus really no more than speculation. Mr Featherby's assertion was that she had only volunteered that fact in her witness statement because by then it had become clear that the Part 18 account would not stand up to scrutiny. Mrs Gee Mr Featherby also relies on the evidence of Susan Gee at page 97 of the bundle/ She interviewed Mr Thackrey and Mr Shenbanjo on behalf of the second defendant. It is right to say that neither suggested to her that drug dealing took place from the car. However both contradict the claimant's belief that he was fortuitously picked up while walking home. Both also make it clear that the car containing the claimant at some stage was in the Tong Road area of the city where Shenbajo lives. That is important in the sense that the plan of the area demonstrates that in going from Tong Road to the Fairfield area the claimant was actually travelling further away from his mother's. Kellet Road, where Mrs Bonner lives, is south of Tong Road, the Fairfields are to the North of Tong Road. The juxtaposition of Kellet Road and the Fairfields. Mrs Bonners evidence was that she expected the claimant home for dinner at 7pm. The Part 18 reply suggests that the locus of the accident was not far from where he was picked up. That is 3.5 miles from his mothers. The accident occurred at 6.40. Had the claimant not been picked up he would have had to cover the 3.5 miles on foot in about 20 minutes if he was not to be late. Mr Featherby argues that that is unlikely and therefore further undermines the claimant's evidence. Onus and Standard of Proof It bears repeating that the onus of proof to establish either defence is on the second defendant on the balance of probabilities. In his written submissions at paragraph 5 Mr Axon suggests that " the cogency and the quality of the evidence must reflect the nature of the allegation". I took that to be a rehearsal of the mantra the "more serious the allegation, the more cogent must be the evidence" If that is what it means then, as was discussed at the hearing, in my view that is not the law, Re B (Children) (Sexual Abuse: Standard of Proof) 2008 UKHL 35 is authority for the proposition that no gloss should be attached to the concept of probability. That case, as its name implies, is a family case but its influence is far wider than simply family. At paragraph 13, Lord Hoffmann states " I think that the time has come to say, once and for all, that there is only one civil standard of proof that is proof that the fact in issue more probably occurred than not". At paragraph 64, Baroness Hale states "Lord Nicholl's nuanced explanation left room for the nostrum, "the more serious the allegation, the more cogent the evidence needed to prove it" to take hold and repeated time and again in fact finding hearings in care proceedings…….. It is time for us to loosen its grip and give it its quietus '. At paragraph 72 she states "As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability ." She goes on to give examples from which it is clear that context is everything. Findings of Fact In this case the question I have to ask myself is not whether on balance the claimant is a drug dealer per se. Since the second defendant's case is that the claimant himself was involved in dealing in drugs from the vehicle as a member of a joint enterprise, the question is whether on balance he was voluntarily present in the car and was involved in drug dealing during the time that he was in this vehicle on the evening in question. In fact in this case, even if that question is answered in the negative, I must then ask myself whether, when the car made off, he knew or ought to have known that the car was being used as a means of avoidance of lawful apprehension and if so, at the point that that knowledge dawned on him or ought to have dawned on him, he could reasonably have been expected to have alighted from the vehicle. I have referred to the points made by Mr Featherby as building blocks. In his submissions he used the analogy of "dot pictures" where the image appears when the dots are joined. Each dot on its own gives no clue but together they show the true picture. His contention is that when these dots are joined the picture is clear. I have to say that I agree. Whilst Mr Axon has, with the skill to be expected of him, cast some doubt on the significance of each dot or building block, their cumulative effect is sufficient to satisfy me that the second defendant has met the burden upon it to the standard required of establishing that the claimant was involved in dealing in drugs from the car that evening. I have rehearsed the arguments above but the following factors are particularly, although not exclusively, pertinent it seems to me; The explanation given by the claimant, or on his behalf, in the Part 18 reply is not supported by any other evidence at all. All the other occupants suggest that the claimant was in the car by design, not by some fortuitous event. If he was in the car by design then what was the likely purpose? It is suggested that these young men used to cruise for lack of anything better to do but the evidence is that this car was specifically borrowed and the journey pre arranged. The evidence of Mr Shenbajo and Mr Thackrey to Mrs Gee is that the claimant was in the car when it was at Tong Road. Certainly according to the plan, if Mr Shenbanjo is to be believed, the claimant was at that point considerably nearer to his mother's than he was at the Fairfields. Why would Shenbanjo lie about that? No effort appears to have been made to find this friend he was visiting whose evidence could have been vital The evidence of Mr Stratton to Mr Nichols cannot be ignored. I accept that it is hearsay and that that affects its weight or value. I have carefully considered, as I am enjoined to do by S4(1) Civil Evidence Act , all the circumstances from which any inference can be drawn as to the reliability of that evidence and in particular the s4(2) checklist. As regards that checklist; (a) I can understand the pessimism of the defendant solicitors that they would ever get this man to court either voluntarily or even under witness summons. Even if they had, his evidence that they were all on a drug dealing mission could only have been given after a warning that he need not answer questions the answer to which was incriminating. The fact that in these circumstances he would not have answered cannot be discounted. Nevertheless, an effort could have been made. That has to be set to some extent however against the factors I have just set out and of course the right of the claimant, under CPR33.4, to seek to require Mr Stratton's attendance (b) I accept that the statement by Mr Stratton was made 6 months after the events to which it refers. That is a relatively long time. I recognise that length of time affects recollection and thus reliability but, despite Mr Axon's submissions, what he said in his witness statement is not significantly inconsistent with the general picture he painted to the police except to the extent that greater candour with the police would have incriminated him further. In this connection I remind myself of his evidence that he picked this car up only 10 minutes or so before the accident. Mr Axon relies on this to support his contention that there was no time to drug deal before the accident occurred. This however is premised on the basis that Mr Stratton was honest about this to the police. If he had admitted that he had the car earlier this may have led to questions about what he and his friends were doing earlier. I have already commented that there must be some circumspection about his evidence that he can refuel the car, pick up his friends, and get from Tong Road to the Fairfields in the short time in which he says he was in possession of the car. (c) This is first hand hearsay (d) Mr Stratton had reason to conceal things from the police but it is difficult to see what reason he had to be so forthcoming to Mr Nichols unless there was truth in what he was saying. He gains nothing from giving evidence of the nature upon which the second defendant relies. As against this, there are some inconsistencies in his evidence to the police. He has convictions for dishonesty and he is clearly a man whose integrity is very much open to question. (e) and (f) do not appear to me to be relevant. The exercise for assessing weight involves a weighing in the scales of the competing circumstances. In my view the scales fall firmly in favour of attaching more than nominal weight to Mr Stratton's account to Mr Nichols. The effect is that I am satisfied that the claimant was in the car by arrangement. That of course is not enough. I must be satisfied that there was dealing from the car at that time and he was part of that dealing enterprise. It is undisputed that there was cannabis found in the car and some outside but very close to the car and in packets of such similar size and content to the one found in the car as to make it probable that they were all together at one point. I acknowledge that the amount was small but it appears to have been more than might be needed for an evening's personal consumption by the four men. The cash is a factor albeit that I accept that most assuredly it would not be on its own. There is real force in Mr Axon's arguments in this connection. However, to revert to my building block analogy, Mr Axon's explanation may destabilise the block but it remains supported at least to some extent by the blocks that surround it. As for the claimant's failure to give evidence, I recognise the argument that this claimant cannot assert a positive case because of his memory loss but the fact is that he was at least as well placed as his mother to tell the court how he believes he came to be in the car and how he reached the conclusion that he was simply offered a lift in it. He is not a hopeless historian, as his biography to the doctor demonstrates. Inevitably the making off at speed suggests some nefarious activity. Of itself it is not indicative of drug dealing in which the claimant was involved but it has to be seen in the context that I have described and that all 4 were familiar with drugs and some had convictions to suggest that they were familiar with the industry surrounding drugs. Mr Stratton's evidence to Mr Nichols was that " all of us were dropping off drugs; £20 deals (Henry)" . I have already explained why I take the view that Mr Stratton's evidence has weight. That the claimant does not actually deny the accounts given by Messrs Stratton, Shenbanjo or Thackery. He puts forward no countervailing explanation save one which is the result of piecing together information. As I have made clear, I must decide simply whether it is more probable than not that on the evening in question. No gloss to the standard should be added to take account of the fact that an allegation that the claimant was involved in the commission of a serious criminal offence is a serious allegation. Nor indeed, for that matter, should a gloss be added to take account of the serious financial consequences of my finding on liability to both of the parties active in this litigation. In particular, I do not doubt for one minute that the claimant's life will be less tolerable without the benefit that adequate financial compensation could bring but that is not a factor in the exercise of fact finding. Having considered all factors therefore I am satisfied on balance for the reasons advanced above, that the car was used for drug dealing during the course of this journey and that the claimant was willingly in the car and was a willing participant in that enterprise. Ex Turpi Causa Non Oritur Actio With those findings in mind I now turn to the defence of ex turpi causa. As I have made clear, although this is a defence put forward by the second defendant, it is actually one which has more direct relevance to the position of Mr Stratton. If established it is a bar to a judgment against him. However, if he has no liability to the claimant then there is no judgment that the MIB must satisfy. In that event clause 5 of the 1999 Agreement is not engaged and thus a consideration of whether the exceptions to it, provided by clause 6, have been made out becomes unnecessary. I have been referred to 2 cases on the ex turpi causa principle, Delaney v Pickett and Tradewise to which I have referred earlier and Joyce v O'Brien and Another 2014 1WLR 70 . In the former case the principle was held not to apply. In that case the claimant was injured when the car driven by the defendant was involved in an accident for which the defendant was responsible by virtue of his negligent driving. The trial judge found as a fact that the car was being used to transport a large quantity of cannabis. The accident did not occur however because the vehicle was being chased by the police, it occurred as a result of some appalling driving by the defendant because essentially he was showing off to the claimant. There appears to have been no connection between the transportation of the cannabis and the accident. Ward LJ (at paragraph 37) saw the test as: " whether, on the one hand the criminal activity (transportation of drugs) merely gave occasion for the tortious act of the defendant to be committed or whether, even though the accident would never have happened had they not made the journey which at some point involved their obtaining and/or transporting drugs with the intention to supply or on the other hand whether the immediate cause of the claimant's damage was the negligent driving" He formed the view in that case that, "viewed as a matter of causation, the damage suffered by the claimant was not caused by his or their criminal activity. It was caused by the tortious act of the defendant in the negligent way he drove the car. In those circumstances the illegal acts were incidental and the claimant is entitled to recover his loss" In Joyce , the principle was held to apply. In that case the claimant was seriously injured when he fell from the rear of a van in which he and the defendant were carrying away from the crime scene a set of ladders they had just stolen. Elias LJ reviewed the development of the law on this principle and noted the apparent move from the belief that the principle was based on duty of care to a view that it is based on causation. He formulated the principle now as follows: " Where the character of the joint enterprise is such that it is foreseeable that a party or parties may be subject to an unusual or increased risks of harm as a consequence of the activities of the parties in pursuance of their criminal objectives, and the risk materialises, the injury can properly be said to be caused by the criminal act of the claimant even if it results from the negligent or intentional act of another party to the illegal enterprise." The purpose of this enterprise, as I have found it, was the supply of drugs. The use of a car is integral to that purpose in my view. It facilitates the sale of the drugs and importantly provides the means of rapid escape if escape is called for. It is in my view entirely foreseeable that the presence of the car on the estate with 4 men in it, one of whom at least is " well linked to drug dealing in the area" will excite the interest of any passing police car and that if it does then it is equally foreseeable that an effort will be made to lose that police car. Such effort is overwhelmingly likely to involve making off at speed. The increased risk of injury as a result of the perceived necessity to travel at beyond a safe speed is obvious. That is precisely what happened here and the accident was a direct result of the effort to evade apprehension and in my view, on Elias LJ's test, must be seen to be caused by the criminal act rather than merely incidental to it. Indeed in Delaney itself Ward LJ at paragraph 32 recounted the trial judge's account of the importance of the car in drug transactions and while some conclusions reached by the judge in that case are criticised as being no more plausible than others, as I understand it, his analysis of the modus operandi of drug deals was not criticised. In short, my analysis is that the circumstances here are far more akin to those in Joyce than Delaney , In the circumstances I find that the ex turpi defence is indeed made out. However, in the event that I am wrong I go on to consider the effect of clause 6 of the 1999 Agreement The 1999 Agreement It seems to me that on the basis of my findings, it is inevitable that the exception provided by clause 6(1)(iii) of the 1999 Agreement is engaged and there is no liability on the second defendant to meet any judgment against Mr Stratton. The preconditions for finding the exception that are set out in clause 6 and which I have attempted to paraphrase in paragraph 15 have clearly been made out for the reasons already given. However, even if I am wrong I am satisfied that the second defendant can avail itself of the exception provided by clause 6(1)(iv). The claimant in my view was clearly aware that Mr Stratton, in making off, was attempting to avoid lawful apprehension. There can be little doubt of that. The police car had blue lights flashing and sirens wailing. Mr Stratton was travelling at a speed which made it obvious that he was attempting to lose the police. Mr Axon accepts that clause 6(1)(iv) of the 1999 Agreement is engaged if the vehicle is used as a means of avoidance of apprehension of any occupant of the vehicle. It is not confined to use to avoid apprehension of the claimant only. Mr Axon made the point more than once that the claimant could not have alighted from the vehicle. Mr Stratton simply took off and the claimant was a rear seat passenger in a 2 door car. However, I am satisfied on balance that in the circumstances of this case it is not reasonable to expect that he would have alighted from the vehicle even if he had the opportunity to do so. He, like his friends, was a seasoned criminal and I have found that they were all in the car by arrangement on a drug dealing mission. It is overwhelmingly probable that he would have wanted to get away as much as any of his friends. In addition there is Mr Stratton's evidence that the claimant was party to the decision to " blow (or smoke) 'em ". That appears to be so based not only on the evidence of Mr Nichols but also it seems to be the purport of what he said to the police and was recorded in the notes of interview at page 126d. I have already set out why I do not feel that Mr Stratton's evidence to Mr Nichols can be discounted. Especially in the light of the fact that in reality, and this point, as I have said, has resonance in relation to all aspects of the defence to this claim, the claimant does not actually challenge the evidence of Mr Stratton or the other occupants of the car because he simply has no recollection. Conclusion In the circumstances therefore I dismiss the claim against both defendants. I am grateful to counsel for their very able assistance in this matter. HHJ Saffman Note 1 "no right of action arises from a shameful cause" [Back] Note 2 A Henry is 1/8 of an ounce. Apparently the expression is derived from Henry VIII. [Back] Note 3 See Wisniewski v Central Manchester Health Authority [1998] PIQR P324 , CA [Back] BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII