Ide v ATB Sales Ltd Lexus Financial Services T/a Toyota Financial Services (Uk) Plc and Sandra Russell
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton,Lord Justice Sedley,Lord Justice Thomas,Lord Justice Dyson,Lord Justice Ward |
| Judgment Date | 28 April 2008 |
| Neutral Citation | [2008] EWCA Civ 424,[2007] EWCA Civ 1470 |
| Docket Number | Case No: B3/2007/1834,Case No: B3/2007/1834 & B2/2006/2563 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 April 2008 |
[2007] EWCA Civ 1470
Lord Justice Buxton and
Lord Justice Sedley
Case No: B3/2007/1834
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR JUSTICE GRAY)
QUEEN'S BENCH DIVISION
Mr N Block (instructed by Greenwoods Solicitors) appeared on behalf of the Appellant.
Mr R Lynagh QC and Mr T Saunt (instructed by AWB Partnership Solicitors) appeared on behalf of the Respondent.
This is an application for permission to appeal from a decision of Gray J issued on 17 July of this year. Since we are minded to grant permission, and grant permission in terms that Mr Block QC does not oppose, I can be very short and simply indicate what at the moment is in at least my mind with regard to the case. That of course does not in any way bind, may not even influence, the court that eventually hears the appeal. I say nothing about the background facts; they are all set out very fully by Gray J in terms that I do not understand to have been criticised.
As far as the facts are concerned, the central fact is that when Mr Ide was found on the ground by his companions the left handlebar was indeed broken. The case is about why that happened. There were two general explanations before the court below. The first is what I will call, for identification purposes only, in the name of the witness the Chinn theory: that the accident happened because Mr Ide lost control of his bike and, not because of any defect in it, and the handlebar broke in the course of his falling off after having lost control. The claimant theory, as espoused in particular by a witness Dr Newton, is that the handlebar failed because of a defect and it was that that caused Mr Ide to fall off.
Subject to what I will call for shorthand purposes the Popi M rule, if the Chinn theory is wrong the only remaining possibility is a failure of the handlebar. In paragraphs 77–79 of his judgment, Gray J gave, if I may say so, clear and comprehensive reasons why he rejected the Chinn theory. After some discussion in court this morning, Mr Block has been good enough to indicate that he does not seek to challenge that part of the judge's judgment, and therefore permission is not granted so to do.
Having established that the judge was entitled to and correctly rejected the Chinn theory, Gray J was careful to be loyal to the Popi M rule, if I can describe it as such, by saying at paragraph 80 of the judgment that, even in a case with only two theories in the field, one of which he had rejected, the burden was still on the claimant to satisfy him on the balance of probabilities that there was a defect in the handlebar. Accordingly, in view of the state of the evidence, much turns on what the judge said in his paragraph 81: that the claimant does not have to establish what caused the handlebar to fracture but only that it was more likely than not that it fractured because of a defect. If the judge is wrong about that then the significant question arises of whether the evidence that he had was sufficient to demonstrate the cause of the fracture. On the assumption that paragraph 81 of the judgment is right, however, paragraph 86 of the judgment approaches that question in the context of the judge having rejected the Chinn theory. For my part I do not see that the Popi M prevents what I would think to be that sensible course, but it is open to the appellant to argue to the contrary. If the judge was entitled to view the issue in the context that he set out in paragraph 86 of his judgment, the question arises of whether even in that context the evidence relied on him in paragraphs 88 to 93 of the judgment was sufficient to discharge the burden that, as he recognised, still rested on the claimant. I hope that that may be a helpful guide, but no one has to follow it, as to how this appeal should progress.
We have already informed Mr Block that there is another case in the system raising not identical but similar issues, Lexus Financial Services v Russell B2/2006/2563; and we are minded to direct that this case and that be heard together, in the sense that they are heard sequentially by the same tribunal. Subject to any view my Lord may have, I think it would be appropriate for that appeal to be heard before three Lords Justices; and I for my part would, for both cases together, allocate a day and a half of the court's time. I made it plain to Mr Block that if, when he has read the judgment in Lexus (which is I think now available from the usual sources) he considers that it would be seriously detrimental to his pursuit of his appeal for it to be heard with Lexus, and I do not for the moment see why it should be, but if he comes to that conclusion it would be open to him to apply to the court for the two to be separated; but I hope that will not arise.
I agree.
Order: Application granted
[2008] EWCA Civ 424
Lord Justice Ward
Lord Justice Dyson and
Lord Justice Thomas
Case No: B3/2007/1834 & B2/2006/2563
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
(1)QUEENS BENCH DIVISION (MR JUSTICE GRAY
(2) NORTHAMPTON COUNTY COURT (JUDGE CHARLES HARRIS QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Neil Block QC and Bernard Doherty (instructed by Greenwoods) for the Appellant (ATB Sales)
Mr Richard Lynagh QC and Thomas Saunt (instructed by AWB Partnership) for the Respondent (Ide)
Mr Neil Block QC and Bernard Doherty (instructed by Beachcroft) for the Appellant (Toyota)
Mr Neil Hext (instructed by Edwin Coe) for the Respondent (Russell)
Hearing date: 8 April 2008
Introduction
These two appeals were heard together because they raise an issue as to the approach the judge was entitled to take to the determination of proof of causation where alternative mechanisms of causation were put before the court. In each case the sole issue before the court was whether the respondent to the appeal who had suffered the damage could prove on a balance of probabilities that a defect had caused the damage sustained; each appellant contended that the judge had adopted a train of reasoning which the House of Lords made clear in The Popi M [1985] 1 WLR 948 ( Rhesa Shipping Co SA v Edmunds) was impermissible.
The Popi M and the approach to the issues of causation
It is necessary to refer to the trial judge's decision in the The Popi M [1983] 2 Lloyd's Rep 235 as it contained what the trial judge described as a striking and novel feature of the expert evidence – all experts put forward explanations of the cause of the loss which were acknowledged to be highly improbable; each explanation was supported as the most likely explanation only because any other hypothesis was regarded as almost (if not altogether) impossible. The owners of the ship claimed against underwriters for her total loss which had occurred in calm weather. It became common ground that the vessel had sunk because of an ingress of sea water through a hole in the side plating. Underwriters contended that the vessel had been unseaworthy and that had been the proximate cause of the entry of water. The trial judge made no finding that the vessel was seaworthy or that she was unseaworthy; he was left in doubt. The owners put forward a case that the hole in the side plating had been caused by contact with a submerged and moving submarine by eliminating other possibilities; the judge concluded that contact with a moving submarine was so improbable that if he were to conclude that it was the likely cause of the loss he had to be satisfied that any other explanation for the casualty had to be ruled out. The underwriters put forward a case that the hole had arisen through wear and tear and provided a detailed explanation as to how that had happened. The judge rejected that detailed explanation and was therefore left with a choice between the owner's submarine hypothesis and the possibility that the casualty occurred as a result of wear and tear but by means of a mechanism which remained in doubt. He concluded that, despite the inherent improbability and despite the disbelief with which he had been inclined to regard it, the collision with the submarine had to be accepted on the balance of the probabilities as the explanation of the casualty.
The decision was upheld in the Court of Appeal, but reversed in the House of Lords. Lord Brandon of Oakbrook, giving the only substantive opinion, described the approach of the trial judge as erroneous by reference to the inappropriateness of applying what was described as the dictum of Mr Sherlock Holmes. First, a trial judge was not compelled to choose between two theories, where the evidence was unsatisfactory; he could decide the case on the basis that the claimant had not proved his case. Secondly it was not possible to proceed on the basis of eliminating the impossible and deciding that the remaining explanation, however improbable, must be the cause, unless all the relevant facts were known; that state of affairs did not exist, as the ship had sunk in deep water. Thirdly, the concept of proof on a...
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