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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Smyth v St Andrews Insurance Plc [2013] EWCA Civ 133 (30 January 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/133.html Cite as: [2013] EWCA Civ 133

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JOHN RANDALL QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th January 2013

Lord Justice Longmore:

1. This is a renewed application for permission to appeal after refusal by Sir David Keene on the papers from a judgment of HHJ Randall QC sitting as a Deputy Judge of the Queen's Bench Division. It concerns a fire which occurred in a house in Brighton. The owner sought to recover from his insurers for the damage caused by that fire. The insurers defended the case on the basis that the partner of the owner had himself caused the fire deliberately and was guilty of arson. By the end of the trial it was agreed that there were really only two realistic possibilities for the cause of the fire, namely (1) a negligently discarded cigarette in the basement (where the fire started) by the female occupant who rented that basement from the owner, or (2) deliberate arson by the partner of the owner of the house as a whole. At first the police and the fire brigade considered that arson was the most probable cause, but eventually, after a trial lasting some five days, Mr Randall, having heard evidence from the occupants in the house and in particular from Mr Howe, the alleged arsonist and then also the occupant of the basement, considered that the more likely cause was the discarding of a cigarette or cigarette end in the basement by the occupant of the basement and he came to that conclusion both on the preponderance of the available evidence, as he put it, as well as on a common-sense view of the matter.
2. There are six proposed grounds of appeal and they are largely appeals on questions of fact. Some of the findings of fact are said to be impermissible but I have found Ms Nolten unpersuasive on that. The basic facts, including the fact that there was paper lying around the basement, which was untidy, and it was in the vicinity of the bed and could within the available timeframe have caused the fire from a discarded cigarette would not in my judgment be reversed by this court.
3. The one point of law which has given me a little cause for reflection is this. The judge in paragraph 81 of his judgment says:

"Looking at the matter in the round, I find no 'other compelling evidence' (cp per Lord Hoffmann) in this case to displace the starting point of a common sense view of inherent probabilities."

Ms Nolten submits that the judge there required compelling evidence before accepting arson as the cause of the fire, and that was to raise the bar which the insurers had to jump too high. The basis of this ground is that the judge had cited Lord Hoffmann's speech in Re B [2008] UKHL 35 to the effect that although one may begin with an assumption that most parents do not abuse their children, that assumption may be swiftly displaced if there is other compelling evidence of the family relationship, e.g. that the child was in a house with both its parents at the time and it was clear that there had been an assault. That is no more than an example of evidence affording what Lord Hoffmann called a "swift displacement" of the assumption.

4. It is possible that when the judge came back to use that phrase "compelling" in paragraph 81, if that had been on its own, that might have set the bar too high. But the fact is that if one looks at the judgment as a whole, the evidence against Mr Howe and in favour of arson was really extremely weak. The judge goes through it, he summarises the position in paragraph 80 of his judgment, setting out the factors that might support the case of arson, and he concludes that it is just not, as a matter of common sense (as he put it) in view of the inherent possibilities, a likely conclusion. I do not myself think that the use by the judge of the word "compelling" in any way vitiates the judgment and the conclusions to which the judge came, and I have every confidence on what is primarily a question of fact that this court would be bound to come to the same conclusion.
5. There is, therefore, I regret, no point in my giving permission to appeal.

Order: Application refused