YOU CANNOT ARGUE A “NEW” CASE AT THE APPEAL STAGE: “RACING” DRIVERS NOT INVOLVED IN A CRIMINAL JOINT ENTERPRISE: FATAL ACCIDENT ACT DAMAGES AWARDED
In Wallett & Ors v Vickers  EWHC 3088 (QB) Mr Justice Males overturned a decision in favour of the defendant and awarded damages to the estate of a deceased driver. The important procedural issue is that the defendant were not allowed to advance a “new” case that they had not argued before the trial judge.
“I consider that it would be wrong on appeal in effect to jettison the way the case was conducted at the trial and to start over again, in effect acting as a court of first instance. To do so would frustrate the parties’ reasonable expectations…”
The deceased driver drove alongside the defendant, at speeds exceeding the speed limit. Each was determined to be first to reach a point where the road narrowed. Neither would give way to the other. One driver lost control and collided with other vehicles. The defendant was found guilty of dangerous driving. The partner of the deceased driver brought an action under the Fatal Accidents Act 1976.
CLAIM DISMISSED AT TRIAL
The claimant’s claim was dismissed at trial. The trial judge accepted the defence of ex turpi causa – that the deceased and the defendant had been involved in a criminal joint enterprise.
- The trial judge found that the defendant had contributed to the accident. Causation was established.
- The judge then found that there was “joint criminal activity”.
PERMISSION TO APPEAL ALLOWED
“In giving permission to appeal Langstaff J observed that the case raises a serious issue of law, “whether in circumstances in which, without any pre-arrangement, two car drivers attempt each to outdo the other by driving faster than the other along a stretch of dual carriageway, at speeds which are dangerous, with a view to reaching an area of single carriageway first, it can be said that the fatal loss of control of the one (in the absence of contact with the other) is an event for which the other is in law responsible”
THE DEFENDANT WAS REFUSED PERMISSION TO ADVANCE A NEW CASE ON APPEAL
At the appeal stage the defendant attempted to argue a point that had not been argued at trial. The defendant’s new argument was that damages should not be awarded because the deceased was involved in a criminal activity in “racing”, regardless of whether he was involved in a joint criminal activity with the defendant. The defendant was not allowed to advance that argument at the appeal stage.
Advancing a new case on appeal
As already explained, the primary case which the defendant seeks to advance is that the defence of ex turpi causa applies to defeat the claim because the claim is founded on the deceased’s own dangerous driving regardless of whether the deceased was party to any criminal joint enterprise. Mr Allen for the claimant objected to that new case, which (as I have shown) was not run below, being advanced for the first time on appeal. If the analysis which I have set out is correct, the new case will fail because of the principle established by McCracken: in the absence of a criminal joint enterprise, dangerous driving by the claimant will not bar a claim pursuant to the ex turpi causa principle.
In principle, however, I consider that it would be wrong to allow this new case to be advanced for the first time on appeal. The parties prepared for and conducted the trial on the agreed basis that participation in a criminal joint enterprise was the decisive question so far as the defence of ex turpi causa was concerned. That has remained the position and even now there is no Respondent’s Notice. Moreover, the basis upon which Mr Horlock seeks to advance this case is not that the defendant should be allowed now to advance a new case, but that this has always been the way the defendant put the case. As I have indicated, I do not accept that.
I consider that it would be wrong on appeal in effect to jettison the way the case was conducted at the trial and to start over again, in effect acting as a court of first instance. To do so would frustrate the parties’ reasonable expectations and, moreover, would at least arguably require consideration of the policy questions identified in Patel v Mirza  UKSC 42,  AC 467. It was common ground that these questions do not arise if criminal joint enterprise is the decisive issue. However, they may do so if a broader consideration of ex turpi causa is necessary, at any rate if the defendant’s new way of putting the case does not fall foul of the decision in McCracken. However, the Recorder has made no findings about those questions and was not asked to do so.
CLAIMANT’S APPEAL ALLOWED
Mr Justice Males allowed the claimant’s appeal. He rejected the argument of illegality. He found the deceased 60% contributory negligence. Judgment was entered for 40% of the agreed damages.
It seems highly probable that what the Recorder understood by racing and by referring to a common goal was merely that each of the two drivers intended to be the first to reach the point where the road narrowed. No doubt that is true, but that is not a common purpose or intent in the sense in which that phrase is used in the law of criminal joint enterprise. Rather than working together or encouraging each other to achieve a shared objective, each man was seeking to achieve his own objective which would necessarily mean frustrating the other. Far from wishing the other to drive dangerously, it seems highly probable that each would have preferred that the other should slow down and give way. I would acknowledge that intention and desire are not necessarily the same thing (see Jogee at ) but there is no basis here for any finding that the deceased intended to encourage the defendant to drive dangerously.
In my judgment, therefore, the most that can be said is that each man intended to drive in a way which would beat the other to the point where the road narrowed. In relation to an incident that lasted only seconds, that is as far as it is possible to go. Although the Recorder found that this had the effect of encouraging the other to drive dangerously, I conclude that he did not make a finding that this was what the deceased intended and, moreover, that if he had done so such a finding would not have been justified.