England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JUSTICE HENDERSON)

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th July 2007

Lord Justice Lloyd:

1. This is an unusual application which arises in the course of an appeal against an order of Henderson J dated 27 April 2007. The order was made in a solicitor's negligence action brought by Mr Hicks as claimant against Russell Jones and Walker as defendants, in which the judge found that the solicitors were in breach of contract but that no loss had followed as a result. Accordingly, he awarded Mr Hicks £5.00 nominal damages but otherwise dismissed his claim and, subject to certain adjustments of costs, basically ordered Mr Hicks to pay the defendants' costs, including a substantial payment on account of costs.
2. Mr Hicks lodged an appellant's notice on 10 May and on 22 May the application for permission which was included in that appellant's notice came on for hearing before my Lord Toulson LJ at an oral hearing, with counsel instructed for the respondent being present. Permission to appeal was granted on two points. My Lord expressed his conclusion in paragraphs 13 to 15, which I shall read:

"13. Reading the pleadings, the claimants' skeleton argument, the Notice of Appeal and the skeleton argument put in by Mr Hicks, Mr Hicks' strongest point appeared to me to be one not raised by him in direct terms, although I think that it is encompassed by certain of his grounds of appeal. It is as follows. The judge found that the solicitors were negligent in two respects: failing to take proper instructions from Mr Hicks and failing to obtain advice from leading counsel in proper time."

"14. As I have indicated, he went on to consider what would have happened if Mr Brindle [that is to say leading counsel] had been consulted earlier, but the point which has concerned me is that the judgment does not address the following separate question: given that the solicitors did not instruct Mr Brindle in time, what ought they to have done and what consequences flowed from their failure to obtain earlier instructions from Mr Hicks?"

"15. It seems to me, at least on an arguable basis, that there are two different issues here: the failure to obtain timely advice from Mr Brindle and the failure to take proper instructions from Mr Hicks. Given that they did not obtain proper advice from Mr Brindle, the claimant arguably is entitled to approach the matter not simply by considering what would have happened if Mr Brindle had been instructed in time, but also what would have happened if they had taken proper instructions from Mr Hicks in the context of their inability to arrange a conference with Mr Brindle."

My Lord went on and referred to submissions both ways and he held, as I say, that grounds 1 and 3 were arguable and ground 2 not.

"Ground 1 is that the judge failed to find that the respondent was in breach of contract in failing to obtain expert evidence in good time to answer the August 1991 valuation. That does seem to me to cross the threshold of arguability, on the basis that if they had properly sought Mr Hicks' instructions that is what they would and should have done."

I am quoting there from paragraph 22.

3. Ground 3 is that the judge misdirected himself in failing to hold that the respondent's breaches of contract were negligent and causative of the appellant's failure before the Court of Appeal on 19 May 1998. That would follow if the court should have been persuaded that the solicitors ought to have prepared counter-evidence and put it to the court, and that had this happened it was unlikely that the hearing of the appeal would have taken the shortcut which it did.
4. I should say that, giving judgment as I am starting after 5.15pm, I am abbreviating the matter considerably and not setting out the background.
5. The respondents to the appeal took the view, in response to permission to appeal being granted on this basis, that there were matters which, if this ground of appeal were substantiated, would call for additional findings from the judge on matters which had, they contend, been fully covered in the course of the evidence before him. They therefore made two applications, one to the Court of Appeal and the other to the judge himself, for a direction that he should make findings on additional issues which would become relevant if the point on which permission to appeal was given was held to be valid and on which the judge did not, although it could be said he could have done, made findings in the course of his judgment. The defendants took the view that, if the point was successful on appeal, the Court of Appeal either would not, or at any rate might not, be able to make the necessary findings of fact itself as to what the outcome of the case would have been, and if so it would find it necessary to remit the case for a partial retrial.
6. I should say that the appeal, as I understand it, is currently fixed for December this year. If there were a retrial that would therefore be some way into next year and all the longer since the trial, which took place between 14 and 23 March of this year. It might therefore be an unreasonable hope that even if the matter came before the same judge, he would have it sufficiently clear in his mind to be able to do anything other than reopen a full oral hearing.
7. On the application to the judge, which came on early in June as I understand it, the judge, I gather, indicated that he was willing to proceed on the basis sought by the application before him, but that he wished to have at least tacit, and perhaps better express, approval from the Court of Appeal in the course of the pending appeal for his doing so. That, therefore, led to the application to the Court of Appeal, which had already been made but had not been brought on, being listed for hearing before myself and my Lord today. Due to the rather congested list that divisions of the court in which my Lord and I have been sitting have had today, we heard submissions this morning from Mr Livesey for the respondents and from Mr Hicks in person, assisted by Mrs Spence. We had to break off at that stage in order to consider the matter, but having expressed the view that we would respond favourably to the judge's implicit request and would consider in precisely what terms we should do so and give judgment at this stage.
8. Mr Hicks contends that it is not open to the judge to proceed further with the hearing. The judge has done his job, he has made his order, he has given his judgment, his order has been drawn up, it is final and that is that. There is of course conventionally a lot to be said for that proposition. The matter is not quite as simple and straightforward as that, however. It is necessary to refer to two different propositions. One is the now established and gently growing line of authority relating to a slightly different subject matter, namely the duty of a judge to give reasons for his judgment. In a case called English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, the Court of Appeal had to consider three appeals, all of which were brought fully or in part on the grounds that the judge had given inadequate reasons for his conclusion.
9. The court started by addressing the general question of giving of reasons and amplification of reasons, and they considered practical courses that might in other cases be adopted for resolving the difficulty. They dealt with that at paragraphs 22 to 25, which are all relevant, but I will content myself with reading paragraph 25:

"Accordingly, we recommend the following course. If an application for permission to appeal on the ground of lack of reasons is made to the trial judge, the judge should consider whether his judgment is defective for lack of reasons, adjourning for that purpose should he find this necessary. If he concludes that it is, he should set out to remedy the defect by the provision of additional reasons, refusing permission to appeal on the basis that he has adopted that course. If he concludes that he has given adequate reasons, he will no doubt refuse permission to appeal. If an application for permission to appeal on the ground of lack of reasons is made to the appellate court and it appears to the appellate court that the application is well founded, it should consider adjourning the application and remitting the case to the trial judge with an invitation to provide additional reasons for his decision or, where appropriate, his reasons for a specific finding or findings. Where the appellate court is in doubt as to whether the reasons are adequate, it may be appropriate to direct that the application be adjourned to an oral hearing, on notice to the respondent."

This is not that sort of case at all because the judge has given perfectly adequate reasons for his conclusions. They may or may not be right and that is the matter that would be at issue on the appeal, but he has not failed to give reasons for his conclusion. What he has failed to do, arguably, is to cover matters that would or do arise only contingently, in the event that he is held to have been wrong on a particular aspect.

10. The other case which is closer to the present, although not quite the same, is an unreported case Roche v Chief Constable of Greater Manchester Police [2005] EWCA Civ 1454. This was a case where Mr Roche sued the police for false imprisonment and malicious prosecution, damages for personal inquiry and damage to the motor vehicle. The matter came for trial before HHJ Tetlow in Manchester County Court and the judge made a finding in favour of the claimant and awarded damages. An issue arose as to whether the claimant had assaulted persons by driving at them recklessly as opposed to deliberately. That was not the case put by the judge. The judge rejected the case for wrongful assault and he said this at paragraph 108 of his judgment:

"I understand it is accepted that in those circumstances that the arrest was wrongful and the subsequent prosecution malicious. If it was not accepted, as I thought it was, then I will have to hear further argument on the basis that the findings I have made as to whether a different conclusion should be reached but it seems to me that given the circumstances, as I have found them to be, the arrest was unlawful and so was the following prosecution malicious."

11. Buxton LJ giving the leading judgment went on to say that that was somewhat problematical, but he also recorded that the judge had held a further hearing shortly after the original hearing, at which he gave judgment, considering the matter further and in the course of which he did address the question of recklessness. He said:

"For what it is worth in the circumstances I have found I would acquit the claimant of assault whether deliberate or reckless."

And he went on to make other findings entirely consistent with his original decision.

12. So permission to appeal was given and the appeal came on and the Chief Constable argued that the second judgment ought to be entirely ignored because the judge had given his first judgment and that was that.
13. The court considered contentions as to whether it was unreliable or undesirable for a judge, having reached a provisional conclusion, to hear further argument on it having already given judgment. Of course the court was well aware that the judge had given judgment and his order had been drawn up, and indeed it was against that that the appeal was launched. Buxton LJ asked himself whether in those circumstances not only the order but also the reasoning of the judge could only be corrected by the decision of the Court of Appeal and not by the judge himself. He said that he considered that the general provisions about finality of judgment did not preclude the court considering the second judgment. He said it did not in any way alter the judge's order, it simply gave further reasons why that order was valid, rejecting the relevance of contentions that were not before the judge when he made that order. He refers at paragraph 27 to the English v Emery Reimbold case and to the fact that the court would have been able, if it thought it relevant, to send the matter back to the judge for him to make findings on matters on which it was alleged that he had not made findings but on which findings were necessary. That is exactly what could arise in the present case and as Buxton LJ said:

"If it was the case that the court considering the original grounds of appeal might have so ordered, why should the court not take advantage of already having the fruits of that inquiry without having to order it?"

He said:

"It would be wholly artificial and wrong if the court did not take account of what [the judge] had found [at the second hearing]."

Accordingly he dealt with the matter on that footing and dismissed the appeal.

14. So that is a case a good deal closer to the present than the English case, which seems to me to justify the course which is proposed and, indeed, gives a degree of approval for the trial judge, no doubt on application from the parties, to make further findings even without the blessing of the Court of Appeal.
15. The additional matter to which Mr Livesey has drawn our attention is Rule 52.10(2)(b) of the Civil Procedure Rules, which gives the appeal court power to refer any claim or issue for determination by the lower court. It seems to me that normally that is likely to arise where the appeal court has taken a view that a particular issue is necessary for decision, but that it could be better for it to be decided at first instance. That may be, of course, on allowing an appeal but it seems to me that the power is defined in sufficiently general terms to allow in a case where it appears to be just and convenient for a point to be referred back for determination by the lower court, even if it is only contingently relevant in the context of an appeal that is still pending. That is exactly this case.
16. For those reasons, it seems to me that the court has power to invite, or indeed direct, Henderson J to make findings on the matters which would be relevant if the ground of appeal that has now been allowed to proceed proves successful and on which it is at least possible, and perhaps likely, that if the judge had perceived that that was a point that needed decision he would have decided not only the point in principle, but may also have made the necessary findings of fact that related to it.
17. It also seems to me that, at any rate, in circumstances in which the judge has the matter fresh in mind, the hearing having been in the course of March, and has indicated that he would be willing to proceed in this way and in which, as I understand it, it is at least contended that he had before him in the course of the trial, so that it would be reflected in the bundles and in the transcript, all the evidence that would be necessary for him to determine any factual issues, that it would be appropriate and conducive to the overriding objective to allow, and indeed direct, that the judge should address the points that contingently arise in relation to the point on which permission to appeal has now been granted.
18. I should say one or two other things arising consequentially. If the matter does go back to the judge, as I would wish that it should, it will go back on the basis of his indication of willingness to proceed in this way, on the basis of some simple directions with a timetable for written submissions and on the basis that otherwise the rest of the procedure is for him to decide on. He will receive written submissions but he should not receive oral submissions unless he invites them. For my part I do not anticipate that he will need to, or indeed that it will be appropriate for him to, receive additional evidence, but I would not wish to preclude either him or the parties from considering whether additional evidence is necessary on any point.
19. The only other thing I would say in that respect is that, because the appeal is due for hearing in mid-December, it is highly desirable that his judgment should be available in good time before that date, not least because one or other or indeed possibly both parties may wish to take exception with points that he does decide in the course of the supplemental judgment. As I see it, the status of his decision will be that it is, in effect, a supplement to his original judgment so that if there are points in it with which either party is discontented, and on which an appeal can properly be launched, the relevant party can then seek permission to add relevant points to the appellant's notice or the respondent's notice, as the case may be. Of course it may be necessary that further directions are sought from the Court of Appeal in terms of the future conduct of the appeal.
20. We have had some debate both orally and written as to the appropriate terms of the directions to the judge. Mr Livesey put before us a draft statement to the judge which explains the basis on which it is to proceed and also sets out the directions for written submissions and defines the questions that the judge would be asked to consider in a certain way. At the hearing that we had this morning, Toulson LJ put forward for consideration a different formulation which Mr Hicks has warmly embraced, and he has suggested two further questions which, for example, raise the question specifically whether the respondents should have ensured that he had copies of certain additional evidence from the appellants in the appeal, which was the subject matter of the negligence action. I can quite see that that may very well be a question that the judge will need to consider.
21. For my part, it seems to me that the appropriate course to take jurisdictionally is to exercise the power that I have referred to under Rule 52.10(2)(b) and to refer to the judge a question to be determined, and I would wish to formulate that question in brief and general terms deriving a text from Toulson LJ's judgment on the permission to appeal application.
22. I do not think that it is appropriate to descend into more detail as to some issues because I think it would be over-prescriptive and over-limiting to the judge. Each party will be able, in the written submissions, to put before the judge its or his formulation of the issues which the judge would need to decide and ought to decide, as well as the way in which it is submitted that he ought to decide. It seems to me that the formula which should be adopted is as follows:

"Given that the respondents failed to arrange a conference with leading counsel to consider the August 1991 valuation in proper time, what (if anything) ought they have to have done by way of obtaining further instructions from Mr Hicks and what consequences flowed from not obtaining earlier instructions from Mr Hicks."

That is the one question which, put generally, seems to me to embrace all the points that either side would wish to put before the judge, leaving the judge free, as he would have been at the trial, to decide how he wishes to deal with it, what points he needs to and can and properly should make findings on and what, of course, those findings should be.

23. Accordingly, I would accede to the application to the extent of making an order under rule 52.10(2)(b) referring that question to the judge. I would adopt the suggested timetable and procedure of skeleton arguments, written submissions and, of course, the provision to the judge of either his original trial bundles or replacements for those, as proposed by Mr Livesey, and I would also make the direction that he proposes that the parties will not make any oral or further written submission to the judge unless requested to do so by the judge.
24. It is clearly important that the judge be asked and enabled to proceed as soon as possible while the matter is still relatively fresh in his mind and in good time for the hearing of the appeal.
25. I would wish to stress that although I can see that there may be other cases in which it is may be desirable to follow a course such as this, I would be most reluctant to make an order of this kind without knowing that the judge was content to proceed in this way. If we had not had any such indication I would not have been minded to make such a direction without there being some enquiry or without there being, at any rate, the possibility of reviewing the matter if it turned out that the judge felt unable to accede.

Lord Justice Toulson:

26. I agree. I add a few observations only because of the unusualness of the application. It is an unusual application, but it is an unusual situation. I agree that it would be just if permissible, to remit to the judge for his consideration the point which caused me to give leave to appeal, and which the judgment had not addressed. It is desirable because it involves questions of fact on which the judge would be in a better position to make primary findings than this court. I agree with Lloyd LJ that the court's power to remit an issue to the lower court under CPR 52.10 is wide enough to cover this situation. The court could certainly do so at the end of the hearing of an appeal, and I see no reason why it cannot do so in advance if that would be just and convenient.
27. There is a compelling analogy with the case of Roche and the reasons for making such a reference at the earliest stage are obvious. Mr Hicks has in writing expressed some unease whether the judge would be able, with the best will in the world, to approach these matters with an open mind. I have no reason to doubt that he will approach them with a fair mind. He has, of course, great knowledge of the case but that is positive advantage.
28. I agree that whether he would wish to hear oral submissions, and whether he would judge it necessary or right to allow any further evidence to be adduced, are matters to be left to the judge.
29. On the question of the form of issue to be remitted, I too think that we should express the issue in the simplest possible terms and I agree with the formulation proposed by Lloyd LJ.

Order: Direction.