Faunch v O'Donoghue and Another (Defendants/Applicants)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson |
| Judgment Date | 28 June 2013 |
| Neutral Citation | [2013] EWCA Civ 896 |
| Date | 28 June 2013 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case no: B3/2012/3330 |
[2013] EWCA Civ 896
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHAMPTON COUNTY COURT
(MR RECORDER MURPHY)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Tomlinson
Case no: B3/2012/3330
Mr Mark Laprell (instructed by DWF LLP Solicitors) appeared on behalf of the First Defendant/Applicant.
The Second Defendant did not appear and was not represented.
The Respondent did not appear and was not represented.
This is a renewed application for permission to appeal against a judgment given by Mr Recorder Murphy in the Southampton County Court sitting at Winchester on 29 November 2012, following a trial which took place on 1 and 2 November of that year. The trial related to liability only in a personal injury action arising out of a road traffic accident which occurred on the M27 motorway on 20 December 2009 at night.
The claimant, Janet Faunch, was a front seat, seat-belted passenger in a Vauxhall Corsa driven by the first defendant, Mr O'Donoghue, with whom she was at the time in a relationship, when it came in collision with a car driven by the second defendant, Mr Brice, which was a Ford Focus. The view was taken in advance of the trial that the claimant, Janet Faunch, was bound to recover 100 per cent of her damages against either the first defendant or the second defendant, or conceivably both, and it was therefore agreed informally without there being any Part 20 proceedings that the trial should continue between the two defendants alone so as to determine who was responsible for the collision or in what proportions the responsibility should be allocated.
Mr Laprell, who appeared for the first defendant at trial and who has appeared before me today, has pointed out to me at the outset that a particular and perhaps slightly concerning feature of this litigation is that, to put it no higher, there is a real possibility that those who were representing what I might call the personal interests of the first defendant Mr O'Donoghue may not fully have appreciated that a trial structured in the way in which this was would give rise to a conclusion which would be likely to be binding as between Mr O'Donoghue and Mr Brice when it came to the determination of Mr O'Donoghue's claim against Mr Brice.
Mr Laprell reminds me that that is of some significance here because Mr O'Donoghue was very seriously injured in the course of this accident, so seriously injured in fact that he was unable to take part in the trial, and if my recollection is right, the position was that he in any event had no independent recollection of what had occurred.
The trial therefore was conducted by insurers exercising their subrogated rights, and whilst of course there was consultation between the insurers' representatives and the representatives of the first defendant, there is that lingering concern to which Mr Laprell has very properly drawn my attention, and there is therefore the overriding consideration that whereas it might seem at first blush that this is simply a contest between two insurers as to who must bear the responsibility for Janet Faunch's claim, the reality is that unless Mr Laprell and I are overlooking something, the outcome of the trial is completely fatal to any attempt by Mr O'Donoghue to recover damages from Mr Brice in respect of his very serious injuries.
The thrust of the argument put forward today by Mr Laprell, repeating what he has said in his grounds of appeal and skeleton argument and his statement put forward pursuant to paragraph 16 of the Practice Direction, is that the trial process was here flawed in consequence of the manner in which the learned Recorder came to his conclusion.
The Recorder was faced with the situation, not an unusual situation, in which...
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Margaret Blackburn Appellant v James A.L. Bristol Respondent
...the trial judge's conclusion was based on an alternate scenario or was not supported by evidence. Faunch v O'Donoghue and another [2013] EWCA Civ 896 applied; Sohal v Suri and another [2012] EWCA Civ 1064 applied. 6. In an action for negligence, the claimant must allege, and has the burd......
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Blackburn v Bristol
...the trial judge's conclusion was based on an alternate scenario or was not supported by evidence. Faunch v. O'Donoghue and another [2013] EWCA Civ 896 applied; Sohal v. Suri and another [2012] EWCA Civ 1064 applied. 6. In an action for negligence, the claimant must allege, and has the burd......