Akmal Khan & Anor v Martin Nistor & Anor

Background

1. This a claim for personal injury by two claimants arising from a road traffic collision which is alleged to have occurred in Gloucester on 27 November 2020.

2. The matter was listed before me for trial on 23 January 2026. It was originally listed before my colleague in Wrexham but as he could not sit that day due to a personal matter which had arisen, it was transferred to me in Caernarfon. I understand that the court staff told the parties’ solicitors of this change of venue on or around 13 January 2026. At the commencement of the trial, Counsel for the claimants advised the court that the second claimant (“2C”) was not attending the trial on the basis that “when it came to coming to Caernarfon, he decided that he does not want to be involved at all.” The claimants live in Gloucester and there had been no objection to the trial taking place in Wrexham, as far as I am aware.

3. I struck out 2C’s claim pursuant to CPR 39.3 and made an order for costs against 2C in 2D’s favour on an indemnity basis.

4. The matter therefore proceeded in relation to the first claimant’s (“1C”) claim alone. I should also add that the first defendant (“1D”) has never taken any active steps in these proceedings but that the second defendant (“2D”) has defended the matter in very robust terms.

5. 1C, a taxi and food delivery driver, alleges that at approximately 5pm on 27 November 2020, he was driving his Ford S Max motor car along Myers Road in Gloucester when 1D emerged in his Seat Altea motor car from the junction of Hamer Street and collided into the nearside of 1C’s vehicle with the front bumper of the Seat coming into collision with the passenger side of 1C’s vehicle.

6. 1C claims damages for PSLA and his injuries are supported by a report from Dr Saeed Malik, a GP, dated 11 March 2021.

7. 1C also claims the following special damages: Vehicle repairs - £3,185.00 Hire Charges - £28,908.00 Recovery and Storage - £3,210.00

8. 1D has played no active part in these proceedings and has not filed and served a defence. 2D is his insurer and has filed a robust defence putting the claimants to proof, alleging that the collision did not occur as alleged, that it is a staged collision and that both claimants’ claims are fraudulent. Evidence

9. Only 1C gave evidence at trial. However, 1C also relies on written evidence as to rates and engineering evidence.

10. 1C’s evidence was given in English but that was not his native tongue. He was not the best of witnesses but I do not consider that this was due to him speaking in English, as opposed to Urdu. He does, after all, work as a taxi driver in this country and his solicitors did not ask the court to book an Urdu interpreter for the trial either. I found 1C to be quite melodramatic in his manner. He would constantly interrupt Counsel for 2D when Counsel was asking him a question or putting something to him. He was almost “pleading” in his manner. He found it difficult to answer a question with a simple yes or no and would instead look at me (or his solicitor), as if asking for help, and give a long, convoluted response to what had been a simple question.

11. Counsel for 2D was only told in the courtroom that 2C was not attending the trial and he was therefore put in a very difficult position in that he did not have the benefit of also cross examining 2C and, possibly, pointing out possible inconsistencies in the evidence of the two claimants. The absence of 2C was very frustrating for me as well.

12. In terms of his evidence, 1C said that he was delivering a kebab from a takeaway located only half a mile from the scene of the accident to a man who was standing close to the scene of the collision.

13. The First Claimant said the accident occurred on Myers Road while he was delivering a kebab. He stated that the customer was nearby but ultimately had not witnessed the collision. Although his statement suggested the customer ‘would have seen the accident’, he said in evidence that the man was still on his way and did not see it. He accepted that 2C, who was with him in the car, was a friend, and said 2C was learning the area because he wished to become a taxi driver, notwithstanding that this was not mentioned in 2C’s own statement.

14. The Claimant accepted that he and 2C frequently lent money to each other and that on the date of the accident he paid 2C £203, and later £3,000 in March 2021. Although he had said he could not afford vehicle repairs, he maintained he could still lend sizeable sums because he was capable of earning significant income as an Uber driver, supplemented at the time by work for Ridgestone Transport who had a schools contract. He said he had declared low income to HMRC because he was struggling financially and supporting a large family but denied dishonesty. He later tried to clarify that it is only since Uber arrived in Gloucester relatively recently that he has earned good money and that his tax returns for the period around the time of the alleged collision indicating that his income was below the taxable threshold were accurate.

15. He said he paid for the car repairs in cash and denied that the invoice was fabricated. He accepted that there were no photographs of the vehicles in their immediate post-collision positions, explaining that after the collision 1D moved his car, reversing up against the gates of an entrance on the opposite side of the road and that 1C, believing that 1D might be trying to get away, had parked his car in front of 1D’s car to ensure 1D and that the photographs were taken afterwards at that location He denied staging or setting up the accident, or that the damage had been created deliberately.

16. 1C accepted he had been involved in several previous accidents, saying this was because of his work on the road. He rejected the suggestion that the GP record stating he was ‘hit from behind’ reflected anything he had said. He denied entirely that the accident was fraudulent, describing the allegation as unfounded. Submissions

17. Counsel for 2D had prepared a detailed skeleton argument dated 22 January 2026 and both he and counsel for 1C gave detailed oral submissions.

18. Counsel for 2D points out the inconsistencies in the evidence of the Cs, the fact that the marks on the nearside of the 1C’s car indicate that 1C’s car was stationary or moving extremely slowly at the time of the collisions.

19. Counsel for 1C makes submissions on the basis that if this were a fraudulent claim and a staged accident, it is very badly done. eg why stage the accident when he is at the beginning of his shift and when he is about to deliver food to a customer? Why arrange for his car, which was subsequently repaired, to be damaged? One would ordinarily expect an old vehicle which was uneconomical to repair to be used. Discussion

20. Much is made of the photographs which were taken of the two vehicles after the alleged collision. They are not of the vehicles at the scene of the collision before the vehicles were moved. I believe that that is what the images were thought to represent until it was noted that in some of the images one can see the presence of double yellow lines on the ground in the gap between the two vehicles. There are no double yellow lines where the collision is alleged to have occurred. 1C says that the photographs were in fact taken on the opposite side of the road after 1D had reversed his car up against the gates which appear to lead to an industrial park.

21. 1C has provided a short film on his phone trying to explain how the vehicles came to be moved after the collision and how the photograph was taken.

22. I have to say that I found the explanation as to how the photographs came to be taken as rather odd. 1C says that the traffic was very heavy at the time and that he was in stop / start traffic. I can see on the video taken by 1C that heavy lorries use that road, presumably because it is near an industrial park. There appears to be a housing estate nearby

23. The expert engineers (Mr Powell for the 2D and Mr Dabek for Cs) have agreed that “the marks and damage on the nearside of the Ford (1C’s vehicle) indicate that the Ford was stationary or moving extremely slowly at the time of the incident.”. The only thing that they disagree on is whether there were one or two impact marks on the nearside of the Ford. The damage does not therefore appear to be inconsistent with a collision with 1C being in stop start traffic at the material time.

24. I have to remind myself of the basics in this case. It is for the claimant to prove his case on the balance of probabilities. Counsel for 2D has provided me with the judgment of the Court of Appeal in Francis v Wells wherein the Court held that “the legal burden then remains on each claimant, but with the allegation of fraud by way of defence an evidential burden would arise on the defendant, and a substantial burden at that.” (2007) EWCA Civ 1350

25. I ask myself firstly if 1C has proved his case on the balance of probabilities. I find that he has not. He was not a good witness. I have commented on that above. His evidence was inconsistent with the documentation. 1C reported to his own insurer that his vehicle had been hit in the rear, which is clearly incorrect given the nature of the alleged damage to 1C’s car. 1C denied saying that to his insurer. If it were the only inconsistency in the case, one might be able to explain this by it being a misunderstanding but here there are so many inconsistencies, that I simply cannot give 1C the benefit of the doubt and find for him. His GP records following a consultation by telephone on 1 December 2020 record that 1C said that “another car hit his car from the back.” In his CNF it is recorded that he had not taken any time off work but he later told Dr Malik, the independent GP who examined him for the purposes of this claim that he had taken 12 days off work. 2C did not attend the trial, even to support 1C’s case. The written evidence in relation to 2C’s case is also inconsistent. For instance, his GP records dated 4 December 2020 record the collision as occurring on Horton Road, whereas it appears to be alleged to have occurred on Myers Road. His CNF states that he did not take any time off work as a result of the injury but he told Mr Gemawat, the independent physiotherapist who assessed him for the purposes of his claim, that he had 4 weeks off work and in the box which has the heading “ Light duties / reduced hours” the reply is “ ongoing”. The GP records dated 4 December 2020 record him as “taking time off sick”. He did not report to Mr Gemawat that he had been involved in another collision on 15 May 2020 yet remembered an incident from 2017. Counsel for 2D submits that this suggests a lack of candour on the part of 2C. I agree. One might forgive an individual forgetting a collision which occurred many years ago (especially if they had been involved in several collisions over the years) but not a collision which had occurred only 6 months prior to the relevant collision. There was no photograph taken of the two vehicles at the scene of the collision. The individual who was waiting to collect the kebab did not provide any information. 1C’s explanation for this was that he did not witness the incident. Much is made of 1C’s history of previous accidents as well as that of 2C. Whilst 1C does appear to have been involved in quite a few collisions, he explained that this was because he was on the road a lot due to the nature of his work. 2C was not in court to provide an explanation but in his GP records he is recorded as being a delivery driver at the material time.

26. One often sees the odd inconsistency in records and documents but there are so many inconsistencies in this case in terms of 1 and 2 C’s cases and 1C was such an appalling witness that I find that he has simply not proved his case, on the balance of probabilities. I accordingly dismiss his claim.

27. I then move on to consider the point made by Counsel for 2D that this is a staged accident. Going back to the Court of Appeal’s judgment in Francis v Wells , “with the allegation of fraud by way of defence an evidential burden would arise on the defendant, and a substantial burden at that.” What evidence is there for me to find that this is a staged collision?

28. I consider paragraph 10 of the defence. This sets out the matters which, according to 2D, lead to 2D’s “reasonable belief and averment” that this was “ a staged collision in order to pursue false claims for injury, loss and damage against 2D.

29. There is the point made about the absence of lateral marks and that this could only be explained by 1C’s vehicle being stationary when it was hit by 1D. However, 2D’s expert has agreed that 1D could have been either stationary or moving “extremely slowly” at collision which could be explained by 1C saying that he was in stop start traffic at the material time.

30. It is odd that 1D did not co-operate with 2D and that the contact was with 1D’s “son” but 2D has not provided me with any evidence to show that there is a connection between the claimants and 1D or 1D’s family.

31. The inconsistencies in the evidence and the failure of 2D to report a collision in the May prior to the alleged collision do raise suspicions and certainly form a part of the reasons why I have dismissed 1C’s claim but, again, it is not sufficient for 2D to meet that substantial evidential burden of proving fraud.

32. 1C’s evidence of how he was able to raise funds to pay for the repairs to the vehicle and about his income at the time was poor but does not lead me to be able to conclude that he was fraudulent.

33. Counsel for the 2D put to 1C that the receipt produced by him to support the fact that he paid for the repairs to his vehicle was not genuine but 2D produced no evidence to back that proposition up.

34. When I look at the overall picture in this case and consider the expert engineering evidence, the poor performance of 1C in the witness box, the many inconsistencies in this evidence, along with the non engagement of 1D and the absence of 2C, this is the kind of case which raises suspicions but the evidence is not such as to lead me to conclude that this was a staged accident when I apply the test in Francis v Wells . Accordingly, I refuse to make such a finding, on the balance of probabilities.

35. I do not propose to address quantum given my dismissal of the claim.