COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
STOKE ON TRENT DISTRICT REGISTRY
His Honour Judge Rubery
LIVERPOOL DISTRICT REGISTRY TECHNOLOGY & CONSTRUCTION COURT
His Honour Judge MacKay
QUEEN’S BENCH DIVISION
The Hon. Mrs Justice Steel
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LATHAM
LADY JUSTICE ARDEN
| PETER ANDREW ENGLISH||Appellant|
|- and -|
|EMERY REIMBOLD & STRICK LIMITED|
D J & C WITHERS (FARMS) LIMITED
AMBIC EQUIPMENT LIMITED
VERRECHIA Trading as FREIGHTMASTER COMMERCIALS
COMMISSIONER OF POLICE FOR THE METROPOLIS
Roger Giles (instructed by Browne Jacobson for Emery Reimbold & Strick Limited)
Edward Bartley Jones, QC and David Casement (instructed by Bowcock Cuerden for D J & C Withers (Farms) Limited)
Robert Moxon-Browne, QC and John McDonald (instructed by Sheridans for Ambic Equipment Limited)
Ronald Walker, QC and Alexander Hill-Smith (instructed by Gordon Dadds for Verrechia t/a Freightmaster Commercials)
James Watson, QC and Jason Barrington Beer (instructed by Metropolitan Police Service for the Commissioner of Police for the Metropolis)
Crown Copyright ©
Lord Phillips MR :
This is the judgment of the Court to which all members have contributed.
The decision in Flannery
“(1) The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in Ex parte Dave) whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.
(2) The first of these aspects implies that want of reasons may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself.
(3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter. Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence, but it is not necessarily limited to such cases.
(4) This is not to suggest that there is one rule for cases concerning the witnesses truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same; the judge must explain why he has reached his decision. The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword.”
The Strasbourg jurisprudence
“The Court reiterates that Article 6(1) obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. The extent to which this duty to give reasons applies may vary according to the nature of the decision. It is moreover necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the convention, can only be determined in the light of the circumstances of the case.”
These principles were reaffirmed by the Court in Garcia Ruiz v Spain (2001) 31 EHRR 589.
“…..the notion of a fair procedure requires that a national court which has given sparse reasons for its decisions, whether by incorporating the reasons of a lower court or otherwise, did in fact address the essential issues which were submitted to its jurisdiction and did not merely endorse without further ado the findings reached by a lower court.”
The requirement to give reasons under common law
“The court’s order is a public act. The judgment given for it is a professional document, directed to the parties and to their professional advisers. It may, in a particular instance, delineate, develop or even decorate the law but that is peripheral and not essential to its nature.”
“When dealing with an application in chambers to strike out for want of prosecution, a judge should give his reasons in sufficient detail to show the Court of Appeal the principles on which he has acted, and the reasons which led him to his decision. They need not be elaborate. I cannot stress too strongly that there is no duty on a judge in giving his reasons to deal with every argument presented by Counsel in support of his case. It is sufficient if what he says shows the parties, and if need be the Court of Appeal the basis on which he acted… (see Sachs LJ in Knight v Clifton  2 AER 378 at 392–393,  Ch. 700 at 721).” (p.122).
Amplification of reasons
The approach of the appellate court
“…this Court must be slow to interfere with the exercise of a judge’s discretion, when the judge has heard the evidence and this court has not. It is also, in my view, important not to increase the burden on overworked judges in the County Court by requiring them in every case to give reasons for their orders as to costs. In the great majority of cases in all probability the costs will follow the event, and the reasons for the judge’s order are plain, in which case there is no need for a judge to give reasons for his order. However, having said that, if a judge does depart from the ordinary order (that is in this case the costs following the event) it is, in my judgment, incumbent on him to give reasons, albeit short reasons, for taking that unusual course.”
ENGLISH v EMERY REIMBOLD & STRICK LIMITED
The Critical Issue
i) Approximately 10% of the population suffers from spondylolysis. Of these, approximately half subsequently develop spondylolisthesis.
ii) The development of spondylolisthesis normally occurs either as the child grows into an adult, in the first 18 years of life (‘congenital spondylolisthesis’) or in old age (‘degenerative spondylolisthesis’).
iii) Spondylolisthesis can be sustained by a person with a healthy spine as a result of a severe accident such as being run over by a motor car (‘traumatic spondylolisthesis’). The slipping accident experienced by Mr English would not have sufficed to cause a spondylolisthesis if his spine had been sound.
“Learned Counsel for the defendants submits that ‘Not only must the Court distinguish between the medical opinions of Mr McBride and Mr Andrew but that when doing so it is of the utmost importance to understand how audacious is the diagnostic position adopted at the trial by Mr McBride and how logically inconsistent is his evidence in support of it.’”
Mr Giles, for the employers, explained to us that the audacity referred to was that involved in adducing a theory at the trial to which Mr McBride had made no prior reference.
“Put to him by Mr Pepperall so on the balance of probabilities before this man suffered his accident in October 1994 do you take the view that there was or was not evidence of degenerative change? He answered “I do not believe there was on the balance of probabilities””
- ‘one would have to have a catastrophic injury to cause a traumatic spondylolisthesis’
- [this type of traumatic spondylolisthesis] ‘is unbelievable, it is just impossible. It is totally alien to all one can anticipate’.
- ‘I’d be as certain as I can be that he had [spondylolisthesis] the day before he slipped on the floor’.
- ‘it is just inconceivable that some minor trauma could cause this’.
- ‘there is no scientific evidence to back up Mr McBride’s theory’.
“As I said earlier it would have made this judgment of inordinate length if I were to simply recite all the detailed medical evidence that the Court heard during the course of the trial. At the end of the day the Court must distinguish between the medical opinions of Mr McBride and Mr Andrew and having considered the matter at considerable length I prefer, on the balance of probabilities, the evidence of Mr Andrew that the spondylolisthesis was developmental in origin and was therefore present before the accident and not caused by the accident as is the view of Mr McBride. In preferring Mr Andrew’s evidence it followed that on the balance of probabilities I accept Mr Andrew’s evidence that Dr West missed the spondylolisthesis which Mr Andrew considers to have been present when he x-rayed the claimant on 7 November 1993.”
[The judge plainly meant 17 November 1993]
D J & C WITHERS (FARMS) LTD v AMBIC EQUIPMENT LTD
“It ought to be visible in principle from the judgment, however succinctly it is expressed, why it is that the judge has preferred one expert’s evidence and one party’s case to the others. But I do accept that the judge had before him, and without doubt had in mind, tenable reasons for preferring the defendant’s to the claimant’s expert evidence. I accept too that if one goes to the reports and written arguments one can find the material there.”
The critical issue
“I accepted the evidence of the Defendant’s expert throughout. I was particularly impressed by Dr Hillerton. The fact that he was a Research Scientist and not a Veterinary surgeon was not, to me, a crucial factor. He had made a deep and long lasting investigation into many of the problems connected with milking cows and mechanical milking.”
“In common with the statement of Mr Mills this appears to me to be a catalogue of selective recollection.”
"111. No order as to costs."
“I have considered the submissions and all the authorities cited. In all the circumstances of this action, I am unpersuaded that I should vary my order that each party should pay their own costs, and that there should be no order as to costs.”
“(6) The orders which the court may make under this rule include an order that a party must pay –
(a) a proportion of another party’s costs, ...
(c) costs from or until a certain date only; ...
(f) costs relating only to a distinct part of the proceedings; ...
(7) Where the court would otherwise consider making an order under paragraph (6)(f), it must instead, if practicable, make an order under paragraph (6)(a) or (c).”