English v Emery Reimbold & Strick Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Phillips MR |
| Judgment Date | 30 April 2002 |
| Neutral Citation | [2002] EWCA Civ 605 |
| Docket Number | Case Nos: B3/2001/1394 A2/2001/0898 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 April 2002 |
[2002] EWCA Civ 605
Lord Phillips Mr
Lord Justice Latham and
Lady Justice Arden
Case Nos: B3/2001/1394
A1/2001/1156
A2/2001/0898
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
STOKE ON TRENT DISTRICT REGISTRY
His Honour Judge Rubery
LIVERPOOL DISTRICT REGISTRY
TECHNOLOGY & CONSTRUCTION COURT
His Honour Judge MacKay
QUEEN'S BENCH DIVISION
The Hon. Mrs Justice Steel
Edward Pepperall (instructed by Woolliscrofts for Peter English)
Roger Giles (instructed by Browne Jacobson for Emery Reimbold & Strick Limited)
Edward Bartley Jones, QC and David Casement (instructed by Bowcock Cuerden for D J & C Withers (Farms) Limited)
Robert Moxon-Browne, QC and John McDonald (instructed by Sheridans for Ambic Equipment Limited)
Ronald Walker, QC and Alexander Hill-Smith (instructed by Gordon Dadds for Verrechia t/a Freightmaster Commercials)
James Watson, QC and Jason Barrington Beer (instructed by Metropolitan Police Service for the Commissioner of Police for the Metropolis)
This is the judgment of the Court to which all members have contributed.
Introduction
In Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 this Court allowed an appeal on the sole ground that the Judge had failed to give adequate reasons for his decision. This was despite the fact that his judgment was 29 pages in length. The trial had involved a stark conflict of expert evidence. The Judge had preferred the expert evidence of the defendants to that of the plaintiffs, without explaining why. This Court ordered a retrial.
Flannery has inspired a large number of applications for permission to appeal on the ground of inadequate reasons. In granting permission to appeal in one of the appeals before us, Sedley LJ remarked that they were becoming a cottage industry. It is an industry which is an unwelcome feature of English justice. The rights of appeal that are afforded under statute reflect the fact that no Judge is infallible. It should, however, be possible to deduce from a judgment the reason for the Judge's decision. Happily the rash of applications for permission to appeal based upon the decision in Flannery does not reflect a widespread inability or disinclination on the part of the judiciary to explain the basis for their decisions. Rather it reflects uncertainty on the part of litigants and Judges alike as the extent to which a judgment should detail the chain of reasoning which has led to the order made by the Judge.
This judgment addresses three appeals which were listed for hearing together. In the event, the first two, ' English' and 'Withers', were heard together, while the third, ' Verrechia' followed immediately afterwards. In English the critical issue was whether a disabling dislocation of a section of the claimant's spine was attributable to an injury for which the defendants were responsible or resulted from a congenital condition. On this issue, expert evidence was of critical importance. In Withers the central issue was also one of causation – whether a hydraulic system for milking cows supplied by the defendants had suffered from design defects which had been responsible for an outbreak of mastitis in the claimant's herd. Again expert evidence was of critical importance. In each case the Judge found for the defendants. In each case the claimant accepted that such a finding was one that was open to the Judge on the evidence. In each case the claimant contended that, because the Judge had failed to explain why he had reached his decision, he had not received a fair trial and was entitled to a retrial.
The decision challenged in Verrechia was of a different nature. In that case the claimant had sued the Commissioner of Police of the Metropolis for the return of a large number of commercial vehicle parts which had been lawfully seized in connection with criminal proceedings. He succeeded in relation to about one third of these; the remainder were shown to have been stolen – without complicity on the part of the claimant – and to belong to third parties. The Judge made no order as to the costs of the proceedings, without explanation. The claimant obtained permission to appeal against her decision in relation to costs, not merely on the ground that she had failed to give any reason for it, but on the ground that it was wrong in principle.
Before turning to the facts of the individual appeals, we propose to examine the decision in Flannery in order to see whether it is possible to dispel the uncertainty to which it appears to have given rise.
The decision in Flannery
In giving the judgment of the Court, Henry LJ remarked at p.381 that it was clear that today's professional Judge owed a general duty to give reasons for his decision, citing Reg. v. Knightsbridge Crown Court, Ex parte International Sporting Club (London) Ltd. [1982] QB 304 and Reg. v. Harrow Crown Court, Ex parte Dave [1994] 1 WLR 98. He made the following comments on the general duty to give reasons:
"(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 parte 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."
At the same page of the judgment, Henry LJ identified a number of exceptions to the duty to give reasons, including decisions in the Magistrates' Court and areas where the court's decision is more often that not a summary exercise of discretion, in particular orders for costs. Flannery was decided before the Human Rights Act 1998 came into force. It is clearly established by the Strasbourg jurisprudence that the right to a fair trial guaranteed by Article 6 of the Convention, which includes the requirement that judgment shall be pronounced publicly, normally carries with it an obligation that the judgment should be a reasoned judgment. In response to this requirement, Magistrates Courts now give reasons for their decisions. Shortly before the hearing of these appeals another division of this Court held that, in some circumstances, Article 6 requires the Commercial Court to give at least limited reasons when refusing permission to appeal against an arbitration award under section 69 of the Arbitration Act 1996, a practice which the House of Lords in The Antaios [1985] AC 191 had held should not be followed – see North Range Shipping Ltd v Seatrans Shipping Corporation [2002] EWCA Civ 405. We propose at the outset to consider the extent of the requirement to give reasons that has been identified by the Strasbourg Court and the nature of the decisions to which that requirement applies, before turning to consider whether our domestic law extends further than this jurisprudence.
The Strasbourg jurisprudence
Both the general principle and the elusive nature of the task of encapsulating it in a test that can be applied in practice are apparent from the following passage from the judgment of the Court in Ruiz Torija v. Spain (1994) 19 EHRR 553 at paragraph 29:
"The Court reiterates that Article 6(1) obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. The extent to which this duty to give reasons applies may vary according to the nature of the decision....
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Subject Index
.... . . . . . . 84Ellis vR [2011] NZCA90 . . . . . . . . . . . . . . . . . . . 267English v Emery Reimbold & Strick Ltd [2002]EWCA Civ605, [2002] 1WLR 2409 . . . . . . . 354Entick v Carrington (1765) 19 State Trials 1030(KB) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29......
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Litigation
...Morgan Research Centre Pty Ltd v Commissioner for State Revenue (Vic) (2001) 207 CLR 72 at 83–84; English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 at 2417–2419, per Lord Phillips MR; Ainger v Cofs Harbour City Council [2005] NSWCA 424 at [47], per McColl JA; Uszok v Henley Properties......
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