Matthew Turner secures re-trial in occupiers’ liability claim where trial judge failed to give reasons for decision

Matthew Turner acted for the successful defendant in the recent case of Fortino v Persimmon Homes Limited.

Background 

The claim involved an accident on a building site where the Defendant was the main contractor. The Claimant, a scaffolder who was employed by a scaffolding sub-contractor, claimed he was injured as a result of the Defendant’s breach of the common duty of care under the Occupiers’ Liability Act 1957.

The original trial took place on 12th April 2021 before a deputy district judge in Brighton County Court. During cross-examination, the Claimant accepted, among other things, that various parts of his witness statement were wrong, and that he was at fault for the accident.

In a short ex tempore judgment, the Judge found for the Claimant on the basis that there was a “failure of duty”, and held there was no contributory negligence. However, he failed to explain how there was a breach of duty, or how there was no contributory negligence. Despite being asked twice to clarify or expand his reasoning, he refused to do so, simply stating “It is a matter for the court to decide”.

The Defendant appealed the decision on the basis that the Judge did not provide any, or any adequate, reasons for his decision. This is a narrow and unusual ground of appeal. Although not strictly contained within the wording of CPR 52.21(3), it has been long recognised by the courts as a good self-standing ground of appeal.

The Law

The Defendant relied on a trio of Court of Appeal decisions: Flannery v Halifax Estate Agents [2000] 1 WLR 377, English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, and Simetra Global Assets Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413.

1. In English v Emery, the Court of Appeal explained that trial judges must give adequate reasons for their decisions because: (1) reasons must be given in order to render practicable the exercise of rights of appeal; (2) justice must be done and seen to be done; (3) reasons are required for decisions to be acceptable to the parties and public; (4) giving reasons concentrates the mind of the judge; and (5) reasons are necessary in order for judgments to set precedents for the future.

Specifically, a judge must: (1) identify all the issues that need to be resolved to reach a conclusion; and (2) explain the manner in which those issues were resolved.

2. In Flannery v Halifax, the Court emphasised that the reasons must also be adequate. For example: “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”.

3. In the recent case of Simetra v Ikon, the Court of Appeal set out four points to help determine whether adequate reasons had been given, namely: 

a. Short judgments must be careful judgments.

b. It is not necessary to deal expressly with every point, but a judge must say enough to show that care has been taken and that the evidence as a whole has been properly considered.

c. The best way to demonstrate the exercise of the necessary care is to make use of “the building blocks of the reasoned judicial process” by identifying the issues which need to be decided, marshalling the evidence which bears on those issues, and giving reasons why the principally relevant evidence is accepted or rejected as unreliable.

d. Fairness requires that a judge should deal with apparently compelling evidence, where it exists, which is contrary to the conclusion which he proposes to reach and explain why he does not accept it.

Although not expressly identified as a ‘fifth point’, the court also emphasised that, where there are relevant contemporaneous documents, these must be addressed.

Submissions

The Defendant argued that the Judge failed to give any, or any adequate, reasons for his decision. His judgment was short, incoherent and careless.

In particular, it did not: (1) identify all the issues which needed to be resolved; or (2) explain how they were resolved. It did not comply with any of the four requirements set out in Simetra: the Judge did not identify the issues to be decided, marshal the evidence relevant to those issues, and give reasons why the relevant evidence was either accepted or rejected. In short, the ‘building blocks of the reasoned judicial process’ were completely absent from his judgment.

Specifically, the Defendant argued that the Judge failed to properly address the four central issues in the case, which were:

1. Was the Defendant an occupier within the meaning of the OL 1957? The Judge did not address this issue at all.
2. What were the mechanics of the accident? The Judge did not determine the dispute between the parties as to how the accident occurred.
3. Did the Defendant take reasonable care? The Judge did not make any of the necessary factual findings to determine how there was a breach of duty e.g., in relation to the Defendant’s system of work.
4. Was there contributory negligence? The Judge found that there was no contributory negligence, despite the Claimant admitting that he was at fault.

Outcome 

Upon receipt of the Defendant’s Grounds of Appeal and Skeleton Argument, Her Honour Judge Venn, granted the Defendant permission to appeal and stayed the execution the trial judge’s order.

The Claimant subsequently consented to the Defendant’s appeal application.

Therefore, in December 2021, His Honour Judge Simpkiss granted the appeal application and ordered that: (1) the order of the trial judge be set aside; and (2) the matter be re-listed for a re-trial before a different judge pursuant to CPR 52.20(c).

Consequently, the appeal was successful on the strength of the Grounds of Appeal and Skeleton Argument, without a hearing even being required.

The Defendant was represented by Matthew Turner instructed by Karen Lau and Elizabeth Wallace of BLM. Matthew specialises in clinical negligence, personal injury, inquests, actions against the police, and professional discipline He welcomes instructions in all types of personal injury work.