KB-2024-001402 - [2025] EWHC 2492 (KB)

I find on the balance of probabilities that Mr Bair was the tall man who bought the Burned Passat in his son’s name and insured it with himself as a named driver. I find that he arranged for the call to be made to report the Burned Passat stolen shortly after the collision and arranged for it to be burned.

I find that the proximity in time and place between the collision, the report of the stolen vehicle, with the caller giving the fake details of the registered owner from a handset owned by Mr Bair, and in the context of the car being registered in his son’s name and with a policy of insurance with him as a named driver is on the balance of probabilities more than coincidence. I find that the Burned Passat was the same vehicle as the Collision Passat and that Mr Bair was driving it at the time of the collision on 20 June 2021. If I am wrong about the fact that he was driving, given I find that he was the owner of the vehicle and that he has failed to explain who was driving it at the time of the collision, he has failed to rebut the presumption that he was the driver, and is presumed to be the driver.

In the circumstances, I give judgment for the Claimants.

I have been asked to add a postscript to this judgment to formally record the brief oral extempore judgment I gave on costs at the hearing to hand down judgment.

The Claimants sought liability costs against the First Defendant on the indemnity basis pursuant to CPR 44.3(1)(b). Mr Bright referred me to the summary of the principles to be applied in the exercise of my discretion to do so in Volume 1 of the White Book

It is repeatedly stressed that each case turns on its own facts and that no additional rules or presumptions should be created, Mr Bright did not seek to rely upon any analogous authorities. He did however cite the recent Court of Appeal authority of Thakkar and others v Mican and another [2024] EWCA Civ 552, solely because, between paragraphs 18-25 of his judgment at pages 4202-4204, Lord Justice Coulson considered it convenient to summarise the general principles applicable to the award of indemnity costs.

Mr Bright submitted that the First Defendant’s conduct in actively defending this claim based on a dishonest account was conduct that meant costs should be awarded on the indemnity basis.

The Claimants are not entitled to costs against the Second Defendant, but, pursuant to its contingent liability under section 151 of the RTA 1988, the Second Defendant will be liable to pay whatever costs are agreed or assessed in relation to the First Defendant.

On behalf of the Second Defendant Mr Vincent did not resist an order for the costs of the issue of liability to be paid by the First Defendant on the indemnity basis.

In the exercise of my discretion and considering the general principles applicable to the award of indemnity costs, I do order that the First Defendant pay the costs of the Claimants on the issue of liability on the indemnity basis. For the reasons set out in my judgment I find that the conduct of the First Defendant falls outside the norm in the sense of being outside the ordinary and reasonable conduct of proceedings. Mr Bair's defence was based on dishonesty, which, in my judgment, is a factor justifying the award of indemnity costs.