England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MIDDLESBROUGH COUNTY COURT
(HIS HONOUR JUDGE TAYLOR)

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th April 2008

Lord Justice Hughes:

1. The applicant employed the claimant as an apprentice joiner for about four years somewhere in the period 1969 to 1974. He brought an action in 2005 against those employers and also against a second building company employer claiming damages for exposure to asbestos. There was no doubt that he was suffering quite serious asbestos-related illness. In due course the judge held both employers liable.
2. The grounds upon which these employers, who were the first defendants, seek leave to appeal contend, in effect, that the judge was wrong in his findings of fact, primary fact. Specifically they contend that he was wrong to accept the evidence of the claimant rather than that of the defendants. Substantially the grounds as presented to this court are a challenge to the judge's finding that, whilst mistaken in one or two respects, the claimant was truthful and generally reliable and the evidence of the defendants was not. Of that, Longmore LJ considering the application on the papers said this:

"This application merely seeks to relitigate the facts of the case. The judgment has no detectable error of law and this court would not arguably come to a different conclusion."

It is, I would add, as must generally be known, the very exceptional case where this case will attempt to substitute its own assessment of witnesses whom it has not heard for that of the judge who has heard them. There is nothing whatever in the Grounds of Appeal which suggests that this is that exceptional case. This court does not rehear cases. It is here to intervene if the judge has made an error of law or arrived at a conclusion which was not open to him on the evidence. Substantially the grounds are for that reason unarguable.

3. No doubt in realistic recognition of that, Mr Cooper has this morning confined his oral submissions to the one ground which does not fall squarely within that category. One of the places where the claimant contended by the time of the trial that he had been exposed to the use and handling of asbestos was a row of garages at a place called Kilbridge Close. Partway through the trial these defendants sought to put into evidence minutes of a board meeting not of their own but of a different company, a company in which the principal director of the present first defendants was also a director, together with others who may have well been related to him. Together with those minutes the defendants sought to adduce some photographs. The purpose of seeking to adduce that evidence was to support what, at that stage at least, was the case of the first defendants, namely that there had not been any asbestos in the construction of this particular block of garages. The judge had an exercise of judgment to perform. The decision whether to admit evidence late in the trial was essentially one for his judgment on the spot. He refused to admit the evidence.
4. The circumstances in which the application came to be made appear to be these. The claimant's assertion in relation to this particular block of garages had not figured in his original Statement of Claim or supporting witness statement. It had, however, been made approximately four months before the trial in a witness statement dated in December 2006. It had plainly been considered by Mr Payne, the principal director and in due course the principal witness of these first defendants, because within about a month, on 22 January, he had himself made an additional statement in which he expressly accepted that there was indeed asbestos in the relevant block of garages. Mr Cooper tells me today that whilst Mr Payne had made a statement thus accepting the presence of asbestos, he had not really had sufficient information to do so, but rather had been prepared to accept it in the absence of evidence to the contrary. If that was his state of mind he might usefully have said so. At all events he did not.
5. The next thing that happened was that the case was listed for trial. It was due to start on 28 March 2007 though in fact it began the following day because of over-run of a previous pressing matter that the trial judge had to deal with. At the outset of the trial the pleadings were amended with the consent of the judge and, as far as one can tell, without significant resistance, on both sides. One of the amendments which on 29 March the first defendants applied to make, and were allowed to make, was an amendment expressly to admit the presence of asbestos in the relevant block of garages. That day the claimant gave his evidence. By then, it appears, the first defendants, notwithstanding that amendment to their pleadings, had some doubts about the matter because the claimant was challenged by counsel for the first defendants, plainly on instructions, as to the existence of the asbestos. He contended that it was there. He had also been permitted to adduce photographs of the block of garages. Those were of limited value since they had been taken 38 years after they had been constructed and the limitation on their value could not have escaped the judge. At the end of 29 March the case was not completed. The claimant's case was completed but the rest of the evidence was not. It could not be taken the following day and it had to go part heard, in effect over the Easter break or for a little bit longer, until it was resumed on 12 April.
6. Because the claimant was very ill, by common consent he was released. It was only on 12 April at the resumed hearing that the application was made on behalf of the first defendants to adduce further photographs of the garages. Those also had been taken some time after the original construction (exactly when, I am not sure is clear). Also they sought to adduce the minutes of the associated or different company.
7. As I have said the judge had an exercise of judgment to make. The application was resisted on behalf of the claimant. The judge considered it carefully. In refusing it he gave his reasons and he elaborated on them when he came to give judgment at the end of the case. He said this at paragraph 14:

"I was extremely troubled by that late application. It clearly had implications for where the trial would go. Mr Bostock [that is, the claimant] was not present and to get him here would not have been an easy exercise yesterday. The trial was originally estimated for two days. It had had its two full days and we had set aside another two days by my taking out of my list an urgent family case and putting it back to next week… [the evidence] was not supported by any witness statements and the minutes of a different company's board meeting may well have been questionable in any event -- but the very form of the document caused me a degree of concern when I looked at it. However, it seemed to me out of fairness to Mr Bostock it was not proper for his case to go on without his counsel having the opportunity to go through it with him and that, effectively, would have meant the waste of time yesterday."

8. In effect the judge refused the application because: (1) the claimant was not there to see the evidence by which it was being asserted his claim should be dismissed; (2) he could not be got there without disproportionate reordering, not only of this case but of other cases which were waiting to be heard in the judge's list; (3) there were no witness statements supporting either the photographs or the minutes; and (4) there was reason to doubt the provenance of the documents because of the form which they took.
9. Mr Cooper properly submits that even without a witness statement he would have been in a position to call Mr Payne, the first defendants' principal witness, to give whatever evidence he could give about the provenance of the documents and, no doubt, about the taking of the photographs. That might or might not have been some cure for the third of the problems but the judge's other reasons, even taken without the third, would perfectly justify the decision that he made not to admit the evidence. This kind of case management decision in the course of a trial is the kind of decision with which this court is very unlikely to interfere unless it can really be shown that it was one which simply was not open to the judge. This is plainly not that case.
10. As to the other grounds I should say that I have considered them all. Since Mr Cooper has realistically not laboured them before me it is, I think, enough if I say that what Longmore LJ said in dealing with the matter on paper is a conclusion which I wholly endorse. This is not an appeal which could succeed. Since it could not succeed, permission for it to be pursued cannot be given. This application must be refused.

Order: Application refused