WHEN YOU THINK THE JUDGE HAS GIVEN INADEQUATE REASONS – BEST ASK THE TRIAL JUDGE BEFORE APPEALING

In Drury v Rafique & Anor [2018] EWHC 1527 (Ch) Mr Justice Birss gave important guidance to those thinking of appealing a judgment on the basis of inadequate reasons. It is dangerous for an appellant to appeal on this grounds without asking the judge to expand their reasons.

THE CASE

The appellant had obtained an interlocutory judgment against the defendants, alleging that construction work was likely to encroach on a gas flue on his property. The appellant gave an undertaking in damages.  A jointly instructed expert determined that there was no encroachment and the respondents sought damages on the basis of the undertaking as to damages.  Damages were awarded on that undertaking in the sum of £22,860.  The appellant appealed that judgment. One of the grounds of appeal was that inadequate reasons had been given by the trial judge.

THE JUDGMENT

    1. The appellant appeals with permission given by Garnham J on 9th March 2018. The appellant’s main case on appeal was that the assessment of damages was flawed because judge failed to give any or any adequate reasons for his conclusions or to deal with all the areas of controversy and that he misunderstood the evidence. The appellant submits that none of the heads damages claimed should have been accepted. The respondents supported the judge, denying that the judge had failed to give adequate reasons and denied he misunderstood the evidence.
    2. The appellant also contended that neither the order relating to the gas flue nor the indemnity costs order should have been made. The appellant submissions are the following: the gas flue order was wrong because in making it the judge erred in giving weight to the opinion of the single joint expert since that opinion was about a legal consequence and not a matter of expert opinion or a description of factual observations. The indemnity costs order was wrong because the judge had not been asked to make an order for indemnity costs and did not do so; if the judge thought indemnity costs might be correct he should have invited submissions on the point.
Appeal on damages
    1. Despite the fact that a failure to give adequate reasons was put at the forefront of the appellant’s case relating to damages, no attempt was made to invite the judge to consider whether to amplify his reasons before complaining about their inadequacy on appeal. Counsel for the respondents submitted this was contrary to the guidance given by Wilson LJ in Paulin v Paulin [2010] 1 WLR 1057 at paragraph 30(a). Counsel for the appellant’s response as I understood it was that there would have been no point in doing so given that his client had lost. That is wrong. It seems to be on the assumption that the reasons would have rejected the appellant’s case on the topics he says were not covered. That is no excuse but even if it is what would have happened, the approach the appellant has therefore taken runs a real risk of unnecessarily prolonging the proceedings. If the appeal court rejects the submission that the reasons are inadequate then that is one thing, but if the reasons are lacking then it does not follow that the right thing to do is conduct a rehearing on appeal without the benefit of hearing the witnesses. The right thing to do might be to direct a retrial, which would have been entirely unnecessary if the judge had had the opportunity to amplify his reasons.
    2. A judge’s duty to give reasons was explained in Flannery v Halifax Estate Agents [2000] 1 WLR 377 at 381 g-h. These principles were not in dispute:
“(1) The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties – especially the losing party – should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in Ex p. Dave) whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.
(2) The first of these aspects implies that want of reasons may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself.
(3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject-matter. Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases.
(4) This is not to suggest that there is one rule for cases concerning the witnesses’ truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same: the judge must explain why he has reached his decision. The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword.”
  1. Picking up on paragraph (2) from Flannery, there was an attempt to suggest on this appeal that one could not tell whether the judge had erred in law because the judge had not set out the propositions of law. However the legal propositions which related to the issues the judge had to decide were entirely uncontroversial and straightforward on the facts of this case. They are that the respondents had to prove their case, and the damages on a cross-undertaking are assessed on contractual principles (Abbey Forwarding v Hone [2014] EWCA Civ 711) this not being a case which might engage the exceptions to that principle. The appellant has no specific point to make about any particular point of law. The judgment cannot be criticised for not setting them out.”