Thoughts will often turn straight to the possibility of an appeal and that should be considered in appropriate cases. For example, where a decision appears to be wrong in law or fact, there may be a compelling reason to seek permission to appeal. This is demonstrated by a recent Personal Injury matter. The medical report indicated a maximum prognosis which had passed; however, during cross examination, the claimant asserted that he was still suffering from his injuries, long after this period. The judge accepted his evidence, finding that he was an honest man who remained injured, and awarded the tariff for the extended prognosis, despite having no medical evidence to support causation. It was concluded that permission to appeal should be sought, and this was granted.
However, even where there appears to be reasonable grounds to appeal, a cost/benefit analysis should be undertaken first. This is of particular concern in matters that proceeded at first instance on the small claims track. In such cases, the costs provisions of CPR Part 27 continue to apply (unless the matter is reallocated) and, as a result, the costs of any appeal are, in effect, irrecoverable. In a recent appeal, the amount at stake was around £2,500. Although the first instance decision was overturned, damages were outstripped by costs, such that there was no net benefit to the appellant in pecuniary terms, and the legal issues at stake were not of wider application or importance. The appellant would have done well to consider these factors before pursuing the appeal, which seemed to be a somewhat pointless exercise. Of course sometimes the appeal is necessary due to the strong opinions of the lay policyholder that the first outcome was wrong on the facts.
Certain types of decision are less likely to be interfered with by an appellate court. This includes decisions which turn on the judge’s assessment of a witness of fact, but is especially true of case management decisions, in respect of which judges have a very wide discretion.
This is illustrated by a recent application to vacate a trial on the basis that the defendant had a chiropractor’s appointment, having recently developed significant back pain described as interfering with her ability to sit or travel. Despite a comprehensive and well evidenced application, including a letter from the chiropractor confirming the appointment and condition, it did not find favour with the judge. The judge required confirmation of the appointment time, and exploration of the option of a hybrid hearing. It subsequently transpired that the Defendant had also been unwell with norovirus, and so did not feel up to attending virtually either. The judge found this explanation unconvincing and proceeded to the trial, resulting in a virtually inevitable loss. Although this decision was extremely frustrating – and some judges may have reached a different conclusion – it was well within the ambit of a reasonable judge, and permission to appeal would almost certainly not have been granted.
Unforeseen or unexpected decisions can go both ways. If the decision in question is a favourable one, that may represent a positive outcome! But be realistic about whether that outcome can be replicated in other matters. For example, a classic road traffic accident trial scenario, is where a driver enters a main road from a junction, after another driver has stopped to allow them to join the road. An accident then occurs where, at that same moment, an impatient driver attempts to overtake the vehicle which stopped. Having seen these same facts play out in front of different judges, they frequently come to different conclusions. In one instance the accident was found entirely to be the overtaking drivers fault, because drivers are not supposed to overtake at junctions. In another it was found entirely the driver entering the main road’s fault, because the other driver had right of way. Most recently, the decision went with a 45% 55% split of liability between the two drivers. In the event that the other side seeks permission to appeal, do give consideration to whether the decision was unforeseen or unexpected because it was wrong. In such cases, it may be prudent to settle the appeal rather than risk an unfavourable decision from a higher court. This is especially the case where there is an important point of law that you would wish to leave open rather than lead to a binding decision by the higher court in question.
More frequently, it is not the Judges or the papers that create the unexpected outcomes. Witnesses once in the stand, while usually doing there best, can turn a case entirely. An occasion where this went in our favour was where fundamental dishonesty had been suspected, but a finding was by no means guaranteed. The Claimant, once in the witness box, had difficulty remembering which of her body parts had been injured. Having forgotten she claimed a neck injury, she sought to explain this lapse in memory by claiming it was the least severe injury and was fully recovered within a week. Unfortunately for her, she had also forgotten that a month after the accident, she had called her GP and reported that her neck injury was the most severe injury. It was this detail that secured the fundamental dishonesty finding, and left the Claimant with nothing more than a substantial costs bill to pay.
In conclusion, when faced with an unexpected or unusual decision by a judge, do not assume that the decision is wrong, but do consider what, if any, next steps are available. Where witnesses are concerned, little more can be done than seeking explanations for any inconsistencies before they have made it to a court room, and ensuring they have read their own documents. Expectations with lay policyholders need to be managed carefully as whilst a case on the facts, to them, may seem clear cut, what happens in open court is unpredictable. Where their own evidence has been poor once tested, the judge will no doubt make this very clear to them, relieving some of the burden of that difficult conversation
DWF Chambers offers a full range of advocacy, advisory, and drafting work across the country. If you require assistance in relation to a recent unexpected or unusual decision, including advice on the prospects of success of an appeal, our clerking team will be happy to discuss our offering, pricing, and bookings with you.
