Niraja Padmalata Lal v Craig Reeder
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Ritchie |
| Judgment Date | 14 June 2023 |
| Neutral Citation | [2023] EWHC 1437 (KB) |
| Court | King's Bench Division |
| Docket Number | APPEAL REF: BM 00008A |
[2023] EWHC 1437 (KB)
Mr Justice Ritchie
APPEAL REF: BM 00008A
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BIRMINGHAM REGISTRY
ON APPEAL FROM
THE JUDGMENT OF HHJ RICHARD WILLIAMS
DELIVERED ON 6.11.2019 at
THE COUNTY COURT AT BIRMINGHAM
IN CLAIM NUMBER B42YX038
Andrew McKie, direct access counsel for the Appellant/Claimant
Daniel Frieze of counsel (instructed by Plexus Law) for the Respondent/Defendant
Hearing date: 23 rd May 2023
APPROVED JUDGMENT
The appeal
This is an appeal from a decision of HHJ Richard Williams [the Judge] delivered at Birmingham Civil Justice Centre on 6.11.2019. The Claimant sought damages for personal injuries arising from a road traffic accident in which the car in which she was stationary and waiting to turn was smashed into from the rear by the Defendant, who drove off after the accident without giving his details. The Claimant's car was shunted about 1 metre forwards (the Claimant's witness statement of 28.8.2016 para. 18). The Defendant was convicted of careless driving, failing to stop, and of drunk driving. The Claimant's schedule for trial claimed general damages for pain suffering and loss of amenity, and past loss and expense of £105,154.39. The counter schedule for trial contained no total but by my addition came to around £10,400.
The Judge entered judgment for the Claimant for £18,342.66 in damages plus costs up to 29.4.2016, however the Claimant was ordered to pay the Defendant's costs thereafter on the standard basis together with interest thereon at 8.75% and £30,000 on account of the Defendants costs by 13.1.2020. There was no mention made in the order of any part 36 offer but clearly one was made by the Defendant and the Claimant had failed to beat it and that led to the split costs order. In the skeleton argument for the Appellant the existence of the offer was expressly stated. I shall deal with the consequences of that under CPR r.52.22 below.
By notice of appeal issued on 21.1.2020 the Appellant sought, in 138 grounds, to overturn many aspects of the judgment.
Permission to appeal was granted on the papers by Martin Spencer J on 14.7.2020 on the ground(s) relating to the Judge's decision to refuse to award to the Claimant damages for her asserted loss of part time earnings as an agency nursing assistant. The application for permission on all other grounds of appeal was adjourned over to be considered verbally at the appeal hearing.
On 7.7.2021 the Appellant applied for permission to rely on fresh evidence in the appeal. The application was dismissed by HHJ Kelly on 7.7.2021. The Appellant appealed to the Court of Appeal and permission was refused by Stuart-Smith LJ on 16.1.2023.
Bundles and evidence
The Court was provided with an appeal bundle in two parts; the trial bundles in 6 parts; a bundle called “Copy” Claimant's Trial Bundle” and skeleton arguments in writing delivered the day before the hearing by the Appellant and in 2020 by the Respondent with an update in response the day before the hearing.
The issues
When opening the appeal the Appellant abandoned all grounds of appeal save for two. Thus the allegations of bias against the trial Judge and of dishonesty against the Defendant's trial counsel (both of which had no merit in my judgment) were abandoned as were many other substantive grounds. The two remaining grounds were:
(1) that the Judge was wrong or irrational to fail to award the Claimant damages for past part time loss of earnings as an agency nursing assistant for 6–8 months after the accident; and
(2) that the Judge was wrong or irrational to fail to award to the Claimant damages for pain, suffering and loss of amenity for travel anxiety after the accident.
Appeal — CPR 52
I take into account that under CPR rule 52.21 every appeal is a review of the decision of the lower court, unless the Court rules otherwise or a practice direction makes different provision, and it will allow the appeal if the decision was wrong or unjust due to procedural or other irregularity.
This appeal is restricted to the evidence before the lower court under CPR rule 52.21(2) unless the three grounds in Ladd v Marshall [1954] 1 W.L.R. 1489 (CA) are made out, namely that it was: (1) not obtainable with reasonable diligence before the lower court, (2) would have an important influence on the result and (3) was apparently credible though not incontrovertible.
Under CPR rule 52.20 this court has the power to affirm, set aside or vary the order, refer the claim or an issue for determination by the lower court or to order a new trial or hearing etc.
Findings of fact and decisions on preferring witnesses and on credibility
I take into account the decisions in Henderson v Foxworth [2014] UKSC 41, per Lord Reed at [67]; Grizzly Business v Stena Drilling [2017] EWCA civ 94, per Longmore LJ at [39–40] and Deutsche Bank AG v Sebastian Holdings [2023] EWCA Civ. 191, per Males LJ at [48–55], that any challenges to findings of fact in the court below, and decisions on which expert and lay witnesses to prefer, have to pass a high threshold test. The trial Judge had the benefit of hearing and seeing the witnesses which the appellate Court does not. The Appellant needs to show that the Judge was plainly wrong in the sense that there was no sufficient evidence upon which the decision could have been reached or that no reasonable Judge could have reached that decision.
The threshold was summarised in Deutsche Bank AG v Sebastian Holdings [2023] EWCA Civ 191, per Lord Justice Males at [48] – [55]:
“48. The appeal here is against the Judge's findings of fact. Many cases of the highest authority have emphasised the limited circumstances in which such an appeal can succeed. It is enough to refer to only a few of them.
49. For example, in Henderson v Foxworth Investments Ltd [2014] UKSC 41, [2014] 1 WLR 2600 Lord Reed said that:
“67. … in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, an appellate court will interfere with the findings of fact made by a trial Judge only if it is satisfied that his decision cannot reasonably be explained or justified.”
50. We were also referred to two more recent summaries in this court explaining the hurdles faced by an appellant seeking to challenge a Judge's findings of fact. Thus in Walter Lily & Co Ltd v Clin [2021] EWCA Civ 136, [2021] 1 WLR 2753 Lady Justice Carr said (citations omitted):
“83. Appellate courts have been warned repeatedly, including by recent statements at the highest level, not to interfere with findings of fact by trial Judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The reasons for this approach are many. They include:
(i) The expertise of a trial Judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed;
(ii) The trial is not a dress rehearsal. It is the first and last night of the show;
(iii) Duplication of the trial Judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case;
(iv) In making his decisions the trial Judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping;
(v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence);
(vi) Thus, even if it were possible to duplicate the role of the trial Judge, it cannot in practice be done…
85. In essence the finding of fact must be plainly wrong if it is to be overturned. A simple distillation of the circumstances in which appellate interference may be justified, so far as material for present purposes, can be set out uncontroversially as follows:
(i) Where the trial Judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence in account, or arrived at a conclusion which the evidence could not on any view support;
(ii) Where the finding is infected by some identifiable error, such as a material error of law;
86. Where the finding lies outside the bounds within which reasonable disagreement is possible. An evaluation of the facts is often a matter of degree upon which different Judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and appellate courts should approach them in a similar way. The appeal court does not carry out a balancing task afresh but must ask whether the decision of the Judge was wrong by reason of some identifiable flaw in the trial Judge's treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.
87. The degree to which appellate restraint should be exercised in an individual case may be influenced by the nature of the conclusion and the extent to which it depended upon an advantage possessed by the trial Judge, whether from a thorough immersion in all angles of the case, or from first-hand experience of the testing of the evidence, or because of particular relevant specialist expertise.”
The threshold was also more recently considered by Lord Justice Lewison in Volpi v Volpi [2022] EWCA Civ. 464, [2022] 4 WLR 48, at paras. 2–4 and 52, 54:
“2. The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind...
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The Dekagram: 10th July 2023
...lost in the period between an injury and trial, and to losses that require specific proof. Hence, going back to basics,inLal v Reeder[2023] EWHC 1437 (KB), Mr Justice Ritchie dismissed an appeal by the Appellant Claimant for not coming up to The Decision at First Instance The underlying act......