Saunderson and Others v Sonae Industria (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lord Justice Lindblom |
| Judgment Date | 05 October 2016 |
| Neutral Citation | [2016] EWCA Civ 1245 |
| Docket Number | Case Nos. B3/2015/2784, B3/2015/4326 & B3/2015/3953 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 October 2016 |
[2016] EWCA Civ 1245
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(JAY J)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Tomlinson
Lord Justice Lindblom
Case Nos. B3/2015/2784, B3/2015/4326 & B3/2015/3953
Mr M Redfern QC, Mr P AslettandMiss A Dobbie (instructed by Camps Solicitors) on behalf Gary Mangan, Edmund Kenny, Paul McLoughlin, Kelly Colebourne, Terence Dunn and Bradley Woods (a minor by his mother and litigation friend, Katherine Woods.
Mr S McGarry (instructed by Fastrack Law) on behalf of Steven Woolvine and Leon Swift.
Mr A Webster QC and Mr A Hogan (instructed by Hampson Hughes Law Ltd) appeared on behalf of on behalf of Hampson Hughes Law Ltd.
Mr M Kent QC & Mr M Jones (instructed by Clyde & Co) appeared on behalf of the Respondent
We are very grateful to all counsel for the thoroughness of their submissions, both in writing and orally today, but we do not propose to grant permission to appeal in respect of any of the applications. I will give my reasons very briefly.
The proposed appeal by the two groups of the initial six Test claimants, then joined by Mr Swift and Mr Woolvine, against the judge's judgment, amounts to an undiluted challenge to the trial judge's findings of fact. It is well known that such a challenge faces an extremely high hurdle and that permission to appeal to this court in such circumstances will only very sparingly be granted.
The judge himself, when confronted with an application for permission to appeal against his decision, regarded an appeal as having no prospect of success at all. Sometimes where a challenge is made to a judge's findings of fact an indication of that sort by the judge would carry very little weight, as where for example the judge can be seen not to have availed himself of the advantage of seeing and hearing the witnesses. In such cases the trial process can be said to have miscarried and the judge's own assessment of the prospects of success of an appeal may be as flawed as his or her conduct of the case.
But this case, in my judgment, is very different. The judge's long judgment, delivered after an 18 or 19 day trial, is well organised, thorough and comprehensive in its treatment of the issues. It is apparent, as I have remarked more than once during the course of the argument, without any disagreement from counsel, that the judge both fully understood the issues with which he had to grapple and that he engaged with them. The judge was plainly faced with a developing case, so far as concerned the science which underpinned the claim. He naturally involved himself in the process of the development of that case and, as it seems to me, he did so in an effort to assist the claimants, because it is clear to me that the scientific evidence presented by the claimants at the outset was in an undigested and unfinished form and was in a form in which it would undoubtedly have failed to carry the day for the claimants, even more comprehensively than ultimately it did.
The judge accepted much of the claimants' scientific evidence. He often gave the benefit of the doubt or made assumptions in their favour. At the end of the day the judge's conclusion on the basis of the scientific evidence was:
"444. Viewed in isolation, the scientific evidence in this case does not begin to support these claims, save possibly for those of Gary Mangan and Shaun West. Indeed, viewed in those terms this evidence demonstrates that virtually all the Test Claimants could not have suffered actionable injury."
The judge went on to consider whether he should temper that conclusion and he concluded, for the reasons he gave, that he should not.
Obviously it is impossible on an application of this sort to go into the complexity of the scientific evidence. Furthermore, as we were rightly reminded by Mr Redfern, it is not in any event the function of the court on an application of this sort to attempt to resolve the issues or to resolve the arguments that are put forward in support of the application for permission to appeal, the court is only concerned to evaluate whether or not those arguments have a real, as opposed to a fanciful prospect of success.
But it remains the case, in my judgment, to the extent that the points on the scientific evidence have been explored in argument, so Mr Kent for the respondents, has been able to demonstrate shortly and convincingly, both in his written skeleton argument and also in his short oral submissions today, that the criticisms made of the judge are ultimately without substance.
One example has been the debate concerning the judge's conclusion on the emission factors. In my judgment, it is an oversimplification to suggest that the judge ignored the agreed expert evidence as to the constancy or continual application of those factors over stages 2 and 3 of the fire. Undoubtedly the position adopted at the outset was a broad brush and general approach to the effect that it was appropriate to assume that there would a consistency or constancy of the factors over stages 2 and 3, but the evidence plainly developed as the point was further investigated and honed in the light of the cross-examination of the expert witnesses and the further work which they undertook.
As Mr Kent was able to demonstrate, there was clear acknowledgement in the evidence, on both sides (particularly the claimants' side) that it was in fact appropriate to adopt a different factor for the very much longer third phase of the fire than that which obtained during the second phase. In the event for phase 2 the judge applied a factor very much higher than that contended for by the claimants and the complaint is that the factor that he adopted for the third phase is lower than the claimants submit it should be. That amounts to a difference with the judge so far as concerns his conclusion, not in my judgment a sustainable attack as to the manner in which he reached that conclusion. The judge was not of course bound by the expert evidence, still less was he bound by it in its unconsidered and undeveloped form.
It is axiomatic that an appeal which amounts to disagreement with the judge's conclusions rather than the route by which he reached them is not an appeal which has a real prospect of success, particularly in a case where it is apparent that the judge did understand the expert evidence and that he gave, on the face of it, convincing reasons for the conclusions which he reached.
By the same token, dealing with the topic of toxicology, the criticisms which Mr Redfern has made of the judge's treatment of the evidence of Professor Hay can also be seen to be ill-founded. Professor Hay was a witness of great eminence and authority in the field, as the judge acknowledged, but a large part of his evidence plainly consisted in generalised observations which were not of particular assistance in tying what had occurred to the likely causation of actionable injury, as opposed to a general description of the extent to which persons might be expected to experience transient inconvenience.
There is a specific criticism in the context of the medical evidence that the judge did not deal adequately with the prospect of exacerbation of existing injury, but the judge plainly had this point well in mind. He addressed himself in general terms to the point at paragraph 188 of the judgment in a manner which is not criticised and thereafter he dealt with it by reference to the specific facts of the Test cases. If we take as an example Mr Mangan, the reason why the judge concluded that there was no case that an existing injury had been exacerbated was, in large part, because he suffered the relevant symptoms too early to indicate that the fire or the aftermath of the fire had had anything to do with the onset of the complaint and there was nothing to suggest, on the basis of his evidence, that there had been an exacerbation. Indeed it seems to me, looking at the case overall, that leaving aside the scientific evidence, the decisive reason why the claimants failed here was simply because their factual evidence fell woefully short of supporting their own claims. The judge summarised the matter in this way at paragraph 451:
"In my judgment, the lay evidence viewed as a whole was unimpressive. It was vague, impressionistic, imprecise, sometimes inconsistent with the known behaviour of the smoke plume, and often internally inconsistent. Only three of the Test Claimants gave evidence which impressed me as being potentially reliable. Given that no one appears to have kept a contemporaneous record of his or her experiences, this generic failure to provide a coherent, consistent account of what occurred is hardly surprising, but in my judgment cannot be a factor in the Claimants' favour.
452. Had there been a critical mass of impressive, reliable lay evidence from the Claimants, I might have been prepared to revisit the toxicological thresholds and the plume modelling evidence. In the absence of these desiderata, I have absolutely no proper basis for lowering the bar.
453. The three Test Claimants who did impress me were Messrs Dunn, Kenny and McLoughlin. They all live north-west of the Sonae plant, but some considerable distance away. Mr Dunn, in many ways the most impressive witness, lives 2.3km away. His exposures were modest. Mr McLoughin gave quite convincing evidence in relation to his skin problems, but in the end I...
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