England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
HH JUDGE BEHRENS
7LS52560

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/03/2009

Lady Justice Smith:

Introduction

1. This is an appeal, brought with the permission of Hallett LJ, against the order of HH Judge Behrens made in the Leeds County Court on 3rd June 2008. In a claim for damages arising out of a fatal road traffic accident, the judge held the defendant liable to compensate the claimant subject to a deduction of 75% for the contributory negligence of the deceased. The defendant now appeals, contending that the judge was wrong to hold him liable.

The facts

2. The accident occurred about 10.20am on 3 May 2004 on the B6265 Greenhow Hill Road which runs between Greenhow Hill and Blubberhouses in the Yorkshire Dales. This is a single carriageway road, about 6.5 metres wide, with a broken white line in the centre. It is subject to a speed limit of 60 mph. Although the stretch of road with which we are concerned is fairly straight – it runs south from Greenhow Hill to Blubberhouses - it crosses undulating countryside.
3. Mr Richard Lambert, the appellant, lives at Slade House Farm, access to which is from a lane which leads, at an angle, off the east side of Greenhow Hill Road. The junction lies just over 100 metres south of a summit in Greenhow Hill Road. The lane is sometimes referred to as a 'lay-by' because it loops round and rejoins the main road a little further north, on the far side of the summit. This summit is 'blind' in that it has the effect of limiting visibility for road users.
4. Mr Lambert has lived at Slade House Farm for many years and is very familiar with the road. He turns into this lane several times a day. He told the court that he was aware that vehicles sometimes come over the crest of the hill at a fast speed, in excess of the speed limit, and that it is therefore necessary for him to take particular care before turning into the lane.
5. On the day of this accident, Mr Lambert was returning home from Blubberhouses, driving his Vauxhall Brava pickup and towing a cattle trailer conveying a calf. The two vehicles combined were about 10 metres long. As he turned into the lane, a Honda motor cycle ridden by Paul Clayton collided with the rear near side of the Vauxhall pickup and the front near side corner of the trailer. The collision was at a high speed; the Honda broke through the corner of the trailer and entered it. The fuel tank burst into flames and Paul Clayton was killed instantly. His widow was the claimant in the ensuing action.
6. The police attended, took photographs and marked the positions of skid marks, gouge marks and items of debris on a plan. Although there were skid marks showing that the Vauxhall Brava had braked sharply in the lane, there was no sign that the motorcycle had braked at all.

The action below

7. On the pleadings, the claimant alleged that the defendant had turned across the path of the motorcycle when it was clearly in view; he had failed to accord precedence to the oncoming vehicle. The defendant alleged that the road ahead, as far as the summit or crest, was clear when he began his turn into the lane. The motorcycle had come over the crest travelling very fast. The defendant had had no other option but to proceed; he had accelerated in an attempt to clear the carriageway but had been unable to do so before the collision occurred by reason of the motorcycle's speed. The defence alleged further that the accident was caused by Mr Clayton's negligence in riding at a grossly excessive speed and further by his failure to brake or take other avoiding action after he had come over the crest and was in a position to see the defendant's vehicles ahead of him in the southbound carriageway.
8. The defendant gave evidence in accordance with his pleaded case. He said that, as he approached the junction with the lane (going uphill), the road ahead of him was clear of oncoming traffic. He believed, therefore, that, in accordance with his usual practice, he had not stopped but had slowed down to a speed of about 10 to 15 miles an hour. The road remained clear and he began his turn across the southbound carriageway. This was not a sharp turn, more of a fork to the right through about 30 to 40 degrees. He claimed that it was not until he was about to leave the carriageway and cross into the mouth of the lane that he saw a motor cycle come over the brow of the hill. It was coming very fast, faster than he had ever seen a vehicle approach. He could do nothing but accelerate to get out of the way. The cyclist did not brake or swerve. Although Mr Lambert accelerated, he was unable to clear the carriageway and felt the collision. He then stopped as soon as he could. By that time, both the pickup and trailer were clear of the southbound carriageway.
9. There were no independent eye witnesses to the collision itself, although some witnesses gave evidence of what they had seen of Paul Clayton and his Honda in the few minutes before the accident. The evidence was that he was then riding very fast, certainly well in excess of the speed limit. In the end, the judge drew the inference that he had been riding at 80mph. He also found that Paul Clayton had not braked between coming over the crest of the hill and the moment of collision – a distance of 110 metres. He held that, travelling at that speed, 3.08 seconds had elapsed after he came over the crest and before the collision. Had he been travelling at 60 mph, the time taken would have been about 4 seconds. There is no challenge to those findings.
10. In the light of the evidence about Mr Clayton's speed and the absence of any evidence of braking, there was never any real dispute that Paul Clayton had, to a significant extent, been the author of his own misfortune. The real issue for the judge was whether Mr Lambert had also been negligent and, if so, how liability should be apportioned.
11. The defendant's account of the accident was challenged by means of the evidence of Mr Peter Sorton, a road accident investigator instructed for the claimant. His theory was that it could be deduced, from the speeds of the two vehicles and the distances they had to cover, that Mr Lambert must have begun his turn after the motorcyclist had appeared over the crest of the hill. Even if the motorcyclist had been travelling at 90 to 100mph, he said, the motorcyclist would have been visible to Mr Lambert before he began his turn.
12. For the defence, another road accident expert was instructed, Dr John Searle. His theory was that Mr Lambert's account was entirely consistent with the speeds and distances involved. In other words, it was entirely feasible that Mr Lambert was already committed to his turn before the motorcycle appeared over the brow of the hill.
13. It was common ground that the real evidence from which deductions could be made was quite sparse. However, by the end of the evidence, there was a substantial measure of agreement between the experts. They agreed, and the judge found, that Mr Lambert had been travelling at about 15mph as he approached the turn into the lane. They assumed, and the judge accepted, that Mr Lambert had not stopped before commencing the turn. They agreed, and the judge found, that the distance between the two vehicles when each driver would have first been able to see the other was about 110 metres.
14. There was some disagreement as to the position of the Vauxhall and its trailer at the moment of collision. As there is no appeal from the findings of fact, it is necessary to say only that the judge held that, at the moment of collision, part of the Vauxhall and all the trailer were still in the southbound carriageway. The Vauxhall would have had to move forwards a further 7 to 8 metres before the trailer would have completely cleared the carriageway. Travelling at 15 mph, that would have taken between 1.04 and 1.19 seconds.
15. The experts also disagreed about the route the Vauxhall had taken in making its right turn. The judge wanted to establish how far Mr Lambert had travelled on the southbound carriage before the collision and for how long he had been obstructing it. Had Mr Lambert driven almost up to the lane entrance and made a fairly sharp turn or had he crossed the central white line some way back and made a more oblique approach? Mr Lambert's own evidence was that he had adopted the route which entailed being in the southbound carriageway for the shortest time and distance. That distance, according to Mr Sorton, would have been about 12 metres. Dr Searle postulated a route which would have entailed Mr Lambert's vehicles being in the southbound carriageway for some 30 metres before the collision occurred. For reasons which are not explained, the judge found that the Vauxhall pickup travelled a distance of 20 metres between first crossing the central white line and the moment of collision. At 15 mph, said the judge, that would have taken 2.98 seconds. By the moment of collision, the manoeuvre was not complete; completion would have taken just over another second. Thus the whole manoeuvre, taking the route which the judge held had been taken, had lasted just over 4 seconds.

Contentious aspects of the judgment

16. Before considering the implications of the factual findings he had made, the judge observed that the presence of vehicles wishing to turn right from Greenhow Hill Road into the lane or lay-by created a potential danger, given the limited view of approaching vehicles. He noted that Mr Lambert was well aware of the danger and knew that great vigilance was required by a driver in his position. He observed that a vehicle travelling south, at 60mph, would have 4 seconds in which to take avoiding action if a vehicle were turning right across its path. He said that a driver approaching the scene was likely to have to brake or slow down and was likely to take the view that a vehicle in the position of Mr Lambert was interfering with his right of way.
17. The judge then said that Mr Lambert's evidence about where the Vauxhall was when the Honda came into view (that is, almost into the mouth of the lane) could not be right. He must have been further back. That finding was dependent on his finding that the motorcycle was approaching at 80mph. At paragraph 61 of his judgment the judge said:

"My findings make it possible to work out where the Honda motorcycle was when Richard Lambert saw it. If, as I have found, the Vauxhall Brava travelled 20 metres after the offside front edge of the Vauxhall Brava crossed the white line, it crossed the white line 2.98 seconds before the collision. If, as I have held, the Honda motorcycle was travelling at 80 mph it came into view 3.08 seconds before the collision. In reality therefore the Honda Motorcycle came into view at or about the same time as the Vauxhall Brava was crossing the white line. At that time, Richard Lambert would have had an extremely good view of the summit. At that time, the Vauxhall Brava was travelling quite slowly – probably less than the 15 mph which is being taken as its average speed. "

18. The judge then turned to consider what Mr Lambert ought to have done. The question was whether his decision to accelerate to try to clear the carriageway was a reasonable one or ought he to have aborted his turn and waited for the Honda to pass. For the claimant, it was submitted that Mr Lambert's decision was negligent and that he should have aborted the turn either by emergency braking or by swerving back into the northbound carriageway.
19. It had been put to Mr Lambert in evidence that, on seeing the motorcycle come over the brow of the hill, he should have braked. His reaction was that this would have left him in a position of danger, obstructing the southbound carriageway. The possibility of an alternative way of reacting (by swerving back into the northbound carriageway) had not been put to Mr Lambert in evidence. Indeed, it had emerged as a possible course of action only at a late stage in the evidence, as the result of the judge putting questions first to Mr Sorton and then to Dr Searle. Mr Sorton was of the view that, if the Vauxhall was just crossing the white line, it would have been quite possible, indeed easy, for Mr Lambert to change direction when the motorcycle appeared over the crest and to move back into the northbound carriageway. Dr Searle disagreed with that view, asserting that such a change of direction would involve a 'sinuous curve' which would probably have left some part of Mr Lambert's vehicle (or vehicles) in the southbound carriageway.
20. For Mr Lambert, it was submitted that the course of action he took was a reasonable one and was not negligent. He did not dispute that other courses of action had been possible but submitted that each possible course of action had its disadvantages. If one allowed a reaction of time of 1 second (which was Dr Searle's estimate of what was necessary) it was too late to abort the turn without encroaching significantly into the southbound lane.
21. The judge accepted the claimant's submissions. Paragraph 61 continued:

"At that time, Richard Lambert had to make a decision whether to continue or abort the turn. Dr Searle suggested that one had to add a significant reaction time. Whilst I accept a very small reaction time may need to be added, it has to be remembered that Richard Lambert is looking up the carriageway specifically for a vehicle. This is not an unexpected hazard.

62. Richard Lambert decided to continue the turn and to accelerate. Unfortunately the combination did not have good acceleration and due to the high speed of the Honda Motor cycle the collision occurred about 1 second before Richard Lambert completed the manoeuvre.

63. In those circumstances the question is whether Richard Lambert was negligent in deciding to continue the turn when he saw the Honda motorcycle coming over the summit. To my mind this is not a matter capable of much elaboration. I have come to the conclusion with some hesitation that Richard Lambert was negligent. He could and in my view should have aborted the turn when he saw the Honda motorcycle."

22. It should be noted that the judge did not say whether he meant that Mr Lambert should have applied emergency braking or should have swerved back onto his own side. The parties are not agreed as to what he meant.

The appeal to this court

23. In this appeal, Mr Alan Jeffreys QC, who appears for the appellant, submitted that, even after rejecting Mr Lambert's evidence, and even on the basis of the facts as found, the judge was wrong to hold that Mr Lambert had been negligent. As Mr Lambert had already begun his turn when the Honda came into sight, he faced a split-second decision, whether to stop, swerve back or go on. None of those options was the perfect solution; each had its potential disadvantages. If he braked, he could not stop on a postage stamp and he would inevitably obstruct part (possibly a large part) of the southbound carriageway. If he tried to swerve back to his own side, he might well confuse the oncoming driver; he was indicating an intention to turn right and the oncoming driver might, on seeing him moving across the white line, position himself to steer round the back of the trailer. Also, according to Dr Searle, such a manoeuvre might well result in a substantial part of the vehicle or vehicles remaining in the southbound carriageway. In any event, submitted Mr Jeffreys, swerving in this way was not a natural instinctive reaction for a driver put in this kind of emergency. The natural reactions would be either to apply hard braking or accelerate and go on. There was also a potential disadvantage to the third option. If he carried on, he might not manage to clear the carriageway and risked causing at least inconvenience to the oncoming vehicle, if not actual danger.
24. Mr Jeffreys submitted that there was no clear right or wrong solution and that, whichever choice Mr Lambert had made between these three, he would not have been negligent. With the benefit of hindsight, it might have been better to abort the turn. But he should not be judged with hindsight; he should be judged according to what it was reasonable for a reasonably careful and competent driver to do at that time, in the circumstances he faced. Mr Lambert had approached the junction carefully, keeping a proper lookout. When he began his turn, the road ahead was clear. When the motorcyclist appeared over the crest, he had to make a decision. He was already committed to his turn, with his foot on the accelerator (he was going uphill) and some degree of right hand lock on the steering wheel. It was reasonable for him to continue. It could not have been immediately apparent to him that the motorcyclist was travelling at an excessive speed even though his personal impression was that he soon realised that. But, by the time he had realised that, it would not have been feasible for him to change his mind.
25. For the respondent, Mr Braslavsky QC submitted that the judge had been right. There was no challenge to the findings of fact. Therefore, the starting point was that the motorcycle appeared over the crest at the very moment when Mr Lambert was crossing the central white line. The judge was entitled to hold that only a very short reaction time was necessary. Also he was entitled to hold not only that it would have been feasible for Mr Lambert to abort the turn but that it was negligent for him not to do so. Mr Braslavsky accepted that it was not clear what the judge meant by aborting the turn; he submitted that he must have meant that Mr Lambert should have aborted the turn either by stopping or by steering back into his own lane. He accepted that the judge had not discussed where the vehicles would have finished up if emergency braking had been applied, which could have affected the question of whether a different decision would probably have avoided the accident. He also accepted, as he had to, that the judge had not resolved the conflict of opinion between Mr Sorton and Dr Searle as to the feasibility of steering back into the northbound carriageway and whether steering back would have probably have avoided the accident. He submitted that it must be inferred that the judge had preferred Mr Sorton's evidence to Dr Searle's, as indeed he had done on all other issues. Also it must be inferred that the judge was satisfied that either method of aborting the turn was feasible and would have avoided the accident; otherwise he would not have held Mr Lambert liable. The judge was right to say that it was negligent for Mr Lambert to carry on as he knew that he was driving a vehicle with poor acceleration pulling a trailer; he could not get across the road quickly. He also knew that vehicles sometimes came over the brow much faster than they should do; therefore he could not assume that this motorcycle would be travelling at a reasonable speed. It was not reasonable for Mr Lambert to think that it would be safe for him to proceed, even if the oncoming vehicle might have to slow down; the motorcycle was entitled to precedence although, in some circumstances, it would not be unreasonable for one motorist to inconvenience another. There were no such circumstances here. There was only one proper course of action for Mr Lambert; it was to abort the turn. Had he done so, the accident would probably have been avoided.

Discussion

26. Mr Lambert's duty was to drive with reasonable prudence and competence. The judge rejected Mr Lambert's evidence as to where his vehicle was positioned at the moment when he first saw the motorcycle come over the hill. He had not almost completed his manoeuvre as he claimed; he had, on the judge's finding, only just begun it. That meant that Mr Lambert's own view of the feasibility of stopping, about which he was asked, was of no value to the judge. It would also have meant that, if Mr Lambert had been asked about the possibility of steering back onto the northbound carriageway, he would plainly have said that that would have been impossible. That opinion would also have been of little value to the judge. However, the fact that Mr Lambert's evidence was without value does not mean that he was negligent and, it is fair to note, the judge did not so find.
27. The judge was not critical of Mr Lambert's driving in any respect other than that he made the wrong choice when faced with a split-second decision. The judge did not hold that he had not kept a proper look out. He did not hold that he was not entitled to begin his turn when he did. It is not said that he failed to see the motorcyclist as soon as it appeared. It is not said that he was travelling at an inappropriate speed. Nor is it said that he had taken an inappropriate line of travel when crossing into the southbound carriageway. In all those respects, he acted appropriately. The only criticism the judge made of Mr Lambert was that, when he saw the Honda come over the crest, he should have chosen to abort the turn rather than to press on.
28. The judge did not explain that conclusion; indeed he said it was not capable of much elaboration. But, with great respect to the judge, in my view, it does require some explanation. It is unfortunate that the judge did not make it plain whether he was holding that either method of aborting the turn was feasible and should have been adopted or only one method and if so which. It is also unfortunate that, in a judgment in which the judge purported to be able to work out times and distances with a high degree of accuracy, he did not work out where Mr Lambert's vehicles would have finished up if he had braked hard. That would be relevant to the issue of causation. Nor did he resolve the difference of view between Mr Sorton and Dr Searle on the feasibility of steering back. But more important than those matters was the question of whether Mr Lambert's split-second decision was negligent at the time it was taken and not merely the least satisfactory decision in view of the outcome. There is no discussion of that question and indeed, it appears to me, from paragraph 62 of the judgment, that the judge was influenced by consideration of the outcome of the incident rather than the situation which faced Mr Lambert at the moment of decision. Thus, the judge did not expressly consider the reasonableness of Mr Lambert's decision in the light of what he knew of the general background and what he knew or ought to have appreciated about the unfolding situation. And he did not give reasons for holding that Mr Lambert's decision was negligent.
29. Accordingly, it appears to me that the judgment is open to criticism and that this court ought to review the decision. It is not possible for us to resolve the conflicts about whether the two ways of aborting the turn were feasible and would probably have avoided the accident. With Mr Jeffreys' concurrence, I shall assume that both were feasible although it seems to me that there is some force in his submission that both of those courses of action carried some potential disadvantage. There is also some doubt in my mind as to whether such courses of action would probably have avoided the collision but, for present purposes, I am prepared to accept that they would have done.
30. The question which must be answered is whether Mr Lambert's decision was negligent at the time he took it in the light of the position he was in and what he knew or ought to have known at that moment.
31. His position was that he had already begun the turn, reasonably believing that it was safe to do so. He was applying acceleration, as he was going uphill, and had applied some right-hand lock. To that extent, he was committed to the turn. What did he know? He well knew that the distance between him and the crest of the hill was short and that it was not uncommon for vehicles to come over the hill at an excessive speed. He knew that his own vehicle was long and did not have good acceleration, at least when towing the trailer. When the motor-cycle appeared, he saw it immediately; he was looking out for anything which might appear. But, however, carefully he was looking, he would not immediately have been able to tell that this motorcycle was travelling at an abnormally fast speed. His decision in that split-second had to be largely instinctive. There would have been no time to think which of three courses of action would have the best outcome. He would not have the kind of knowledge that we now have, for example that, if the vehicle was travelling at 80mph he would have only three seconds in which to clear the carriageway. From his experience, he would have a 'feel' for whether he had time to cross in safety. I do not think that, in that first split-second, the fact that a vehicle appeared on the crest, at a speed he could not immediately assess, created an imperative that Mr Lambert should immediately abort the turn. His duty was to take reasonable care for the oncoming vehicle's safety and also to give it precedence. But giving precedence does not necessarily entail allowing an oncoming vehicle to proceed unimpeded at a very fast speed. It is not necessarily negligent, particularly on a country road where large slow vehicles have to use the highway, for one driver to cause another driver the inconvenience of having to slow down.
32. One cannot infer negligence in this kind of situation from the fact that the collision occurred. I do not think that it can be said that Mr Lambert's reaction and decision fell below the standard of reasonable prudence or competence. It may well be that, had he taken a different decision, the accident might have been avoided. But that is not the test and judges must take care not to hold a motorist liable in negligence just because the accident might have been avoided if a different decision had been taken.
33. In my judgment, the overwhelming cause of this accident was that Mr Clayton was riding at an excessive and dangerous speed, particularly as he came over a blind summit. Moreover, he took no evasive action when he saw or should have seen the Vauxhall and trailer in the carriageway ahead of him. The judge at one stage seemed to discount or excuse that aspect of Mr Clayton's negligence observing, as he did at the end of paragraph 58, that Mr Clayton must have been going fast 'as otherwise I would have expected him to be able to brake or swerve. He did neither'. In my judgment, however fast Mr Clayton was going, he should have been able to brake (albeit with care) and also to steer his machine, although of course, if he was going too fast, he might not have been able to stop in time or otherwise avoid the collision. The severity of this accident was due to his speed at the moment of impact and that speed was due not only to his initial manner of riding but also his failure to apply his brakes. If Mr Clayton had been driving at a proper speed and if he had reacted properly, this accident could easily have been avoided, even if Mr Lambert had done exactly as he did. Mr Clayton's dangerous driving created the emergency for Mr Lambert and, in my view, Mr Lambert is not to be held negligent and liable because, in the split-second available, he took what turned out to be the least favourable decision.
34. For those reasons, I would allow this appeal.
35. Before leaving this case, however, I wish to add a few words about the process of fact-finding which the judge adopted. It is always difficult for a judge to find facts when there is a paucity of eye-witness evidence as there was here. In such circumstances, the judge may have to draw inferences and may also wish to rely on reconstruction experts and the calculations which they encourage. However, there is a danger in such a process that the judge may be led into making findings of fact of unwarranted precision. Here, for example, the judge made a finding that the motor cycle was approaching at 80mph. He did not find that the speed was in a range of, say, something between 75mph and 90mph. He plumped for a specific speed, based on very limited material from which he was able to draw inferences. That speed of 80 mph directly governed the time which the judge held had been taken to cover the 110 metres between the motorcyclist's appearance at the top of the hill and the collision. The time was 3.08 seconds. Then the judge wished to determine for how long the Vauxhall and trailer had been in the southbound carriageway. He plumped for a route which measured 20 metres (neither a little more nor a little less) and, accepting the expert's estimate of Mr Lambert's average speed (15mph), calculated that the Vauxhall and trailer were in the southbound carriageway for 2.98 seconds. That was the basis on which he concluded that the Honda came into view at or about the same time as the Vauxhall was crossing the white line. His factual conclusion was as precise as that and it formed the basis on which Mr Lambert fell to be judged.
36. My concern is that this degree of precision was not warranted by the evidence. The evidence relating to the speed of the motorcyclist was very limited; eye witnesses described him driving very fast. His friend who was following said that he was riding at 95mph at times and thought Mr Clayton would have done likewise but he also thought he would have slowed down for the blind summit. On that material, a finding of a range of speeds would be justified but a specific speed is not. Similarly, with the distance travelled by the Vauxhall, Mr Lambert's evidence was that he took the shortest route; that would have been about 12 metres. The experts suggested figures between 12 and 30 metres. But there was no real basis on which the judge could say what the actual distance was and, indeed, he did not attempt to do so. He plumped for 20 metres.
37. These 'guestimates' treated as secure findings of fact could easily lead to an unjust result either way. For example, if the motor cycle had been coming at 90mph instead of 80, the time taken to reach the collision point would have been 2.73 seconds instead of 3.08. That is a third of a second less. That may not sound much, but adopting the judge's method of 'calculating back' and keeping all other factors the same, it could make a crucial difference. It would mean that, instead of the Vauxhall just crossing the white line at the moment the motorcycle appeared, it could have been over 2 metres into the southbound carriageway. That would put a very different complexion on consideration of Mr Lambert's decision. Take an example the other way. If the motorcycle was only going at 70mph not 80, the time taken to cover the 110 metres to the collision point would have been 3.52 seconds. So, other factors remaining the same, the judge's back-calculation would have put Mr Lambert half a second short of crossing the white line. In those circumstances, there can be little doubt that he ought to have aborted the turn.
38. But other factors might not have been the same. The judge's estimate of the distance covered by the Vauxhall might have been significantly inaccurate. If Mr Lambert had taken the shortest feasible route, it would have taken him only 1.8 seconds to reach the collision point and, adding just over an additional second to complete his manoeuvre, he would have been out of the way if the motor cycle had been coming at 80mph but not out of the way if the motor cycle had been coming faster, say at 90mph.
39. The only point I wish to make is that there is a danger of doing injustice if judges make unwarrantedly precise findings of fact. Of course, if the evidence warrants a precise finding of fact (on the balance of probabilities) that makes the judge's judgment easier. If there are inherent uncertainties about the facts, as there were here, it is dangerous to make precise findings. This may well mean that the party who bears the burden of proof is in difficulties. But that is one of the purposes behind a burden of proof; that if the case cannot be demonstrated on the balance of probabilities, it will fail.
40. I stress that these last observations are entirely obiter as, for the purposes of the appeal, the parties have accepted the judge's findings of fact and I have done likewise. For the reasons given earlier, I would allow the appeal and set aside the judge's order.

Lord Justice Sullivan : I agree.

Lord Justice Thorpe : I also agree.