Horridge v Weston Birt School Ltd

This is a renewed application for permission to appeal from the judgment of HHJ Taylor QC given on 21 May 2007. The litigation is a relatively straightforward personal injury claim brought by a schoolmaster against his school, arising out of a tripping accident on a darkened stage, which led to injury to Mr Horridge’s knee.

Two points are raised which are fully dealt with in Mr Copnall’s original skeleton argument and his further applicant’s statement for this permission hearing. Since we are willing to give permission to appeal, there is no need to lengthen this judgment, save to say that on the substantive issue of Mr Horridge’s claim for loss of earnings, as a result of giving up his work as a marker of examinations for Ed-Excel, we consider that there is, for the reasons set out in the written skeletons, a real prospect of success. Not a great deal of money is in issue, however.

The second point is a costs point. At the end of trial, the judge was asked to say that the 100 percent uplift on a conditional fee agreement should be reduced as being unreasonable. 100 percent represented an assessment of the chances at the time of that agreement as being 50/50. The judge, in large part, accepted the submissions of defence counsel that that was unreasonably high in a straightforward case, in which it could be foreseen (as indeed occurred) that liability would be admitted, as it was shortly before the defence. The defence counsel, in the transcript of the argument which is before us, gave his reasons for saying that the uplift should be no more than some 25 percent. In the end, the judge adopted a figure of 30 percent, which represents an assessment of chances at the 70 or perhaps 75 percent range.

The complaint here is, in effect, simply that the judge gave no reasons. In the end, it is true that he simply said, in two lines, that he thought that in these circumstances the appropriate uplift should be one of 30 percent. It is plain, from the transcript of the submissions before him, that it was accepted on both sides of the argument that the assessment had to be made at the time of the agreement. Nevertheless, counter-submissions were being made by counsel on both sides. It might be inferred that, in adopting the figure of 30 percent, the judge was accepting the submissions of defence counsel Mr Turton; and it has not been submitted before us that those submissions were erroneous, or could not be adopted by the judge. The submission, rather, is that the judge has not given his reasons.

In those circumstances, if this had been the only point on appeal, speaking for myself, I would have been extremely reluctant to give permission to appeal. I would have concluded that the judge had adopted, in essence, the submissions of defence counsel; and without complaint that those submissions were wrong, so as to entitle permission to appeal, the matter would rest there. As it is, since there will in any event be permission to appeal on the substantive issue, I am prepared to accept that there is just sufficient in the costs point for permission to appeal to extend to it as well.

In reaching that conclusion, I hope nevertheless that it will not be necessary for this appeal, as it now is, to reach a hearing in this court. There is every sign that relatively small sums are at stake, and I would request the parties to think very carefully about the desirability of reaching agreement, making the hearing of an appeal unnecessary. In such a case, there may well be no need for the help of any mediation services; but, as is well known, the Court of Appeal does run its own mediation scheme, which is a very cost effective scheme; and if the operation of that scheme can be of any assistance to the parties, they have only to contact the Civil Appeals Office to learn all about it. I do not direct that the Civil Appeals Office write a CAMS letter to the parties, but this judgment will stand as my concern that the parties should address the question of the settlement of this appeal in a serious way, and the scheme stands ready to assist them if necessary.

I agree, and I warmly endorse my Lord’s last remarks about the desirability of this matter not coming to a full hearing before this court. The only other matter I would add is to draw attention to the evidence of the applicant at page 39 of our bundle, transcript internal numbering page 13, which was to the effect that his GP’s advice to him was that he should cease the examining work to give his knee time to settle. Assuming that that was the advice which the judge was accepting was given to him, it seems to me that it is arguable that the judge did not tackle the issue of whether, in those circumstances, it was unreasonable of the applicant to have acted on that advice. It certainly is not so obvious that it was unreasonable for him to have done so that we should not give permission to appeal today.