England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PRESTON DISTRICT REGISTRY
(Mr Justice Mitting)

		The Royal Courts of Justice The Strand London Monday 11 March 2002

Monday 11 March 2002

1. LORD JUSTICE SIMON BROWN: The claimant respondent is now 36. On 11 November 1996, when she was 31, she suffered a severe brain injury in a road accident. Liability is admitted. Quantum is in issue: the claimant needs round-the-clock nursing care and the claim is huge; just how huge will depend not least upon the claimant's life expectancy.
2. Experts were instructed. The claimant's expert was Dr Walton, a consultant physician in rehabilitation medicine. The defendant's was Dr Burt, a consultant neurologist and a consultant in spinal injuries. The respective estimates of life expectancy changed, but eventually came to rest at 60 on the part of Dr Burt and 70 on the part of Dr Walton.
3. On 22 December 2000 the claimant obtained a report from Mr Gardner, a consultant surgeon in spinal injuries at Stoke Mandeville Hospital. His view is that the claimant will live until the age of 75 or 76, or indeed maybe longer. The claimant thereupon applied for permission to rely on this evidence too. On 17 February 2001, shortly before that application was heard, Mr Gardner produced an expanded version of his December report which reviewed a number of studies relating to the life expectancy of patients with spinal injuries.
4. The application came before District Judge Ashton on 27 February 2001. He was managing the case and had already in December held a case management conference which he had then adjourned. He refused the application to admit Mr Gardner's evidence, but he gave permission to appeal in these terms:

"This raises an unexplored point of great importance in the present case (and potentially in others) on the late introduction of supplemental expert evidence pursuant to the Civil Procedure Rules 1998."

5. It is perhaps an interesting comment that Mr Turner QC for the appellant defendant suggests that it did no such thing.
6. The appeal came before Mitting J on 19 July 2001 and he allowed it. He permitted Mr Gardner to give evidence at the quantum trial and he also gave permission for the defendant, if he wishes, to instruct a further expert in life expectancy.
7. The essential basis of Mitting J's judgment was that the district judge misunderstood Mr Gardner's evidence and in particular failed to recognise that it "introduced, for the first time, an element into the assessment of life expectancy which had not previously been there", that element being

"statistical evidence, drawn mainly from spinal injuries cases, which would suggest what the life expectancy of someone who whom a good standard of care was available, might be."

8. That misunderstanding by the district judge entitled Mitting J to exercise his own discretion. Posing the question:

"Can the issue of life expectancy, (an issue of very great importance in the case) justly be resolved without evidence of the type which can be given by [Mr] Gardner?"

the judge said that the answer "had to be 'No'."

9. Disappointed by that result, the defendant in turn sought permission to appeal; permission, that is, to bring a second-tier appeal. By section 55 of the Access to Justice Act 1999 it is, of course, provided that such an appeal may not be brought unless it raises an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it.
10. That application initially came before Mantell LJ on the papers, when it was refused in these terms:

"Unlike a refusal to allow the introduction of evidence this is not a decision which can lead to injustice and I fail to see that the proposed appeal raises any important point of principle or practice or that it contains some other compelling reason for the Court of Appeal to hear it."

11. On the renewed application, made orally before Latham LJ on 9 November 2001, permission to appeal was granted. The reason it was granted (and it is plain that it was the only reason) was because Latham LJ was given to understand that Mr Gardner's report, or at any rate his expanded report of 17 February 2001, had not been before District Judge Ashton and that this fact had not been appreciated by Mitting J, who was thus in error in concluding that the district judge had made a mistaken assessment of Mr Gardner's potential evidence.
12. In short, the position overall is that Mitting J thought that the district judge had misunderstood the position; Latham LJ thought that Mitting J had misunderstood the position; and now the claimant suggests that Latham LJ misunderstood the position - although it is not, I think, suggested that any misunderstanding respectively by Mitting J or Latham LJ was through any fault on their part. The claimant, besides resisting this appeal, has applied to set it aside on the ground that both of Mr Gardner's reports were in fact before the district judge. It has seemed to the court sensible to regard that application as subsumed within the appeal itself: we could detect no useful purpose in treating it as a discrete matter.
13. The appeal has generated a considerable mass of paper and I could easily give a long judgment in the matter. That, however, is not my intention. Rather I propose to deal with it really quite shortly, since I have reached the clearest conclusion that it never began to qualify as a permissible second-tier appeal.
14. Let me first consider what was the factual position before the district judge. The accounts as to this differ. The claimant's evidence suggests that not only was Mr Gardner's second report of 17 February 2001 before the district judge but that he read it. The district judge himself, however, in a written note dated 11 February 2002 (prepared for this court and the parties in response to a letter asking for his recollections) says that the report of 17 February 2001 was offered to him during the hearing but that:

"I declined to look at it because I felt that it was too late in the day to introduce a further supportive report to counter the effect of the report of another expert previously relied upon .... the report in question was made available for the first time part way through the hearing but not looked at or relied upon by me."

15. Certainly that recollection accords more closely with the reason given by the district judge for granting permission to appeal in the first place.
16. For my part, I think it matters nothing whether the district judge chose to read the report or chose not to. The undoubted fact is that the report was put before him and it was that report which the claimant was seeking permission to adduce in evidence. The district judge accordingly either misunderstood what he read or, because of not reading it, misunderstood what actually it contained. One way or the other, therefore, it seems to me that Mitting J was right to say that the district judge had "misunderstood the nature of the evidence to be given by [Mr] Gardner."
17. If that is the position, then two things inescapably follow. First, that Latham LJ's grant of permission was made upon a false basis. Let me quote just one or two short passages from his judgment:

"[District Judge Ashton] did not have an opportunity to see or read the report from [Mr] Gardner, although it was, as I understand it, in existence at that time .... Before me, Mr Turner has submitted that the approach of the judge was at least arguably flawed because he had not appreciated that the report was not before District Judge Ashton .... As we now know, the report was not before the district judge, and the district judge could not therefore be said to have made any mistaken assessment of the report. It follows that consideration needs to be given to the extent to which that vitiates the decision of Mitting J, bearing in mind that he was dealing with the matter on the basis of fresh material without there having been, as I understand it, any appropriate application for fresh material to be put before him for the purposes of the hearing."

18. Mitting J was not, however, dealing with the matter on the basis of fresh material at all. Both Mr Gardner's reports had been before the district judge. Whether or not he chose to read them is perhaps uncertain but, as stated, matters not.
19. The other consequence of my conclusion that one way or the other the district judge misunderstood the position is that Mitting J had to exercise his own discretion in the matter. Should Mr Gardner's evidence be admitted; could the claim justly be resolved without it? In concluding that the answer to that question "had to be 'No'", it seems to me that Mitting J was saying not merely that on balance that was his conclusion, but that in his judgment it was the only reasonable conclusion open to the court.
20. I remind myself of what was said by the House of Lords in G v G, conveniently to be found included in a useful passage in Brooke LJ's judgment, as to the impact of the new Civil Procedure Rules upon appeals generally, in Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311 at 1317:

"30. As a general rule, every appeal will be limited to a review of the decision of the lower court .... The appeal court will only allow an appeal where the decision of the lower court is wrong, or where it was unjust because of a serious procedural or other irregularity in the proceedings in the lower court: CPR, r 52.11(3).

31. This marks a significant change in practice, in relation to what used to be called 'interlocutory appeals' from district judges or masters. Under the old practice, the appeal to a judge was a rehearing in the fullest sense of the word, and the judge exercised his/her discretion afresh, while giving appropriate weight to the way the lower court had exercised its discretion in the matter. Under the new practice, the decision of the lower court will attract much greater significance. The appeal court's duty is now limited to a review of that decision, and it may only interfere in the quite limited circumstances set out in CPR, r 52.11(3).

32. The first ground for interference speaks for itself. The epithet 'wrong' is to be applied to the substance of the decision made by the lower court. If the appeal is against the exercise of a discretion by the lower court, the decision of the House of Lords in G v G (Minors: Custody Appeal) [1985] 1 WLR 647 warrants attention. In that case Lord Fraser of Tullybelton said, at p 652:

'Certainly it would not be useful to inquire whether different shades of meaning are intended to be conveyed by words such as 'blatant error' used by the President in the present case, and words such as 'clearly wrong,' 'plainly wrong,' or simply 'wrong' used by other judges in other cases. All these various expressions were used in order to emphasise the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible.'"

21. If, of course, the district judge misunderstood the essential nature of Mr Gardner's evidence and the additional dimension which it brought to bear on the issue of life expectancy, then neither G v G nor Tanfern v Cameron-MacDonald have any application to Mitting J's task: he needed to exercise his own discretion afresh, unencumbered by any view reached by the district judge. But if, as appears to be the case, Mitting J in any event thought that a refusal to allow in Mr Gardner's evidence would have "exceeded the generous ambit within which a reasonable disagreement is possible", then on that ground too the appeal fell to be allowed.
22. On what possible basis, one then comes to ask, could a second appeal here succeed? One of Mr Turner's many arguments (and in using that expression I refer more to his written skeleton arguments than to his commendably succinct oral submissions advanced this morning) appears to be that Mr Gardner's report added nothing of value to the evidence about the claimant's life expectancy in any event. That, however, is clearly not the view taken by the claimant's own advisers. They suggest that Mr Gardner's reports introduced a reasoned approach to life expectancy, supported by publications, which had not been apparent in either Dr Walton's or Dr Burt's reports; and they certainly contend that the judge was not only entitled, but right, to reach the conclusion that the issue of life expectancy could not justly be resolved without evidence of the sort he gave, rightly described as "detailed and carefully reasoned".
23. Can the difference between the parties on that issue really be said to constitute "an important point of principle or practice or some other compelling reason" for a second appeal? In my judgment, plainly it cannot. Nor do any of the other reasons sought to be advanced by Mr Turner on behalf of the appellant defendant begin to persuade me that this case justifies a second appeal.
24. Let me quickly run through the various grounds contended for. Three important matters of principle and practice are said to arise. Each is put in the form of a question. The first is this:

"Is it appropriate for an Appellate Judge to exercise his discretion on a crucial issue without giving any reasons?"

25. The answer to the question is self-evidently "no", but to my mind the question is inept because it is founded on a false premise. The judge here did give reasons. I have already indicated essentially what they were. The first was that the district judge had failed to appreciate the new dimension to the evidence on life expectancy contained in Mr Gardner's report; the second was that justice in any event required that the evidence be admitted. In reaching those conclusions, the judge carefully set out, explored and analysed the district judge's own reasoning. I do not propose to repeat that exercise. I shall bear with such fortitude as I may any suggestion hereafter by Mr Turner that I for my part have failed to give a reasoned decision.
26. The second point of principle said to arise is this:

"Is it permissible for a Judge sitting in an Appellate capacity to decide an issue on grounds not identified in the Grounds of Appeal nor Skeleton Arguments without giving Counsel an opportunity to address the issue?"

27. Again the answer is plainly "no"; but again the question is based on what to my mind is a false premise. Having read in full the transcript of the hearing before Mitting J, it seems to me perfectly plain that the judge gave Mr Turner ample opportunity to address the real issues, as they were perceived by the judge and ultimately dealt with in his judgment.
28. The third point of principle is formulated thus:

"Should an Appellate Court be entitled to assume that material was before the Court below without evidence or agreement on the issue?"

29. My answer to that is, "why on earth not?" unless, of course, the suggestion is made that the relevant material was in fact not before the court below, in which case it would clearly be necessary to investigate it. No such question was raised before Mitting J here as to whether or not either or both of Mr Gardner's reports had been before the district judge.
30. As for the three other suggested "compelling reasons for the Court of Appeal to hear this appeal", these I can deal with yet more shortly. The first is that it would be "an affront to justice" if Mitting J's judgment were allowed to stand. That is pure hyperbole for which there is not a shred of justification in this case. Mitting J may have been right or he may have been wrong in his own assessment of the relevance and potential importance of Mr Gardner's evidence in the case. It is here, however, that G v G and Tanfern v Cameron-MacDonald are truly of relevance. Given the circumscribed basis upon which nowadays even a first appeal falls to be decided, I need hardly emphasise howe reluctant this court will be to entertain a second appeal. On an issue of case management such as arises here, the number of occasions when it will truly be appropriate to involve this court will be few indeed, and certainly this is not one of them.
31. The second suggested compelling reason is that "the financial implications of the learned judge's decision are far reaching." True it is that the judge below contemplated that the eventual decision on the appropriate multiplicand based on life expectancy could well affect the award to the extent of some £500,000. I find remarkable, however, the suggestion that in these circumstances this court should be the readier to interfere with a decision that all possibly relevant evidence should be before the trial court so that justice may be done. Proportionality suggests the opposite conclusion.
32. The third and final "compelling reason" is that the judge's approach was contrary to the spirit of CPR reforms. I believe I have said enough to indicate why in my judgment that is not so. The position is rather that this second appeal is contrary not merely to their spirit but to their letter. I would unhesitatingly dismiss it.
33. MR JUSTICE CHARLES: I agree. I too would dismiss this appeal. I add a few words of my own, focused on the succinct submissions we heard this morning from Mr Turner. The underlying issue is a case management issue: it is how should the statistical evidence referred to expressly by Mr Gardner in his second report, which relates to spinal injuries, be introduced into this case.
34. One possible solution is that that material could be put to the existing experts. Another is that Mr Gardner could introduce that material himself. The district judge decided that the matter should be put to the existing experts and that Mr Gardner should not be permitted to give evidence. The judge reached a different conclusion. On the face of it, it can be said that there was a range of discretion open to the two decision-makers and they have reached opposite conclusions within that range of decision.
35. Mr Turner, facing the difficulties he has with a second-tier appeal, says that the central point is that the judge exercised the wrong approach on the appeal before him. First, he says that the judge took the wrong approach by effectively or simply substituting his decision rather than taking the correct approach set out by my Lord in his judgment. It seems to me that that is not an argument open to Mr Turner on the judge's reasoning, and indeed it was not the argument Mr Turner primarily put to us.
36. The primary argument Mr Turner put to us was that it was not open to the judge on the information before him to reach the conclusion that there had been a basic flaw in the reasoning of the district judge, thereby entitling the judge to exercise his discretion afresh. As to that, I would make two points. First, it seems to me that it was open to the judge to reach that conclusion, notwithstanding the fact that the evidence as to the statistics was not expressly mentioned until Mr Gardner's second report. The second point I make is that, even assuming that the judge was wrong to have reached that conclusion, it seems to me that that is not something which falls within the test for a second-tier appeal. Accordingly I too would dismiss this appeal.
ORDER: Appeal dismissed with costs, on an indemnity basis from the date of permission, to include the costs of the application to set aside. The appellant's costs to be assessed in accordance with Community Legal Services Regulations 2000. (Order not part of approved judgment)