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PI and Civil Litigation

Law - practice - procedure

17 NOV 2014

Jubair Ali (protected party by Jabid Ali, his father and Litigation Friend) v (1) David Graham Caton (2) Motor Insurers’ Bureau [2014] EWCA Civ 1313

RTA – MIB – Inconsistent Evidence – Approach of the Court

 Court of Appeal
 Tomlinson, McCombe, Beatson LLJ
 15 October 2014

 The Court of Appeal held that the first instance judge had not erred in finding that the claimant suffered from significant cognitive defects despite having passed the UK Citizenship Test (UKCT) and it being common ground amongst the medical experts that this was surprising and inconsistent with the level of cognitive disability the claimant had previously displayed.

 The claimant was injured in a road traffic accident by an uninsured driver and brought a claim against the driver and the MIB. Shortly before trial in June 2013, evidence emerged that the claimant had sat and passed the UKCT. This confounded the medical experts, none of whom had considered the claimant was capable of having passed the test. The trial judge found the claimant passed the UKCT but despite this, found he did suffer from a significant cognitive defect and an award was made at over £2.3 million (if calculated on a lump sum 100% liability basis).

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The MIB appealed on the basis that the judge had failed to properly consider the consequences of the claimant passing the UKCT, arguing that the only logical conclusion was the claimant had either been malingering,consciously exaggerating or did not suffer from significant cognitive defects. The claimant cross appealed arguing that the finding that the claimant passed the UKCT went against the weight of evidence.

In his lead judgment, McCombe LJ found that the trial judge had placed the UKCT pass into context with all the other evidence and had been entitled to make the findings he did, and had not been wrong to place significant reliance on the fact that the claimant spent 9 months in a residential rehabilitation programme. The judge had been entitled to find that the claimant did pass the UKCT on the evidence that he heard but it would have been the wrong approach to focus on the UKCT pass almost to the exclusion of the other evidence.

When a particularly compelling piece of evidence arises that is inconsistent with the other evidence, the correct approach is not to focus on that piece of evidence to the exclusion of the other evidence but to place it into the context of the evidence as a whole.

Joseph Carr, Anthony Gold