Gawler v Raettig

As will be seen this is an unusual application for permission to appeal which itself raises some questions on principles. For that reason we have decided that our judgment can be reported.

It is an application for permission to appeal again an order of Gray J made on 1 May 2007 pursuant to a judgment handed down on the same day in which he held that the damages for personal injuries which the applicant was liable to pay to the respondent arising out of a car accident be reduced by 25% under section 1(1) of the Law Reform (Contributory Negligence) Act 1945 (“the 1945 Act”).

The accident occurred on 19 December 2004. The applicant was driving the car and admitted liability to the respondent, who was a friend of his and who was sitting in the front passenger seat. The accident happened as the car approached a slight bend on the A1034. The applicant lost control of the car, which left the road, turned over and came to rest on its side in a field between 15 and 20 metres from the road. Unfortunately the respondent was not wearing a seat belt and as a result of the accident, he was totally ejected from the car. He was found lying on the ground between the final position of the car and the road. He was very seriously injured.

It was agreed between the parties that on a full liability basis the applicant would be liable to the respondent for damages in the sum of £2,700,000. The judge reduced that amount by 25% on the ground of the respondent’s contributory negligence in that he was not wearing a seat belt.

The sole issue at the trial was whether the damages should have been reduced by more than 25%. The respondent submitted that 25% was the correct figure by reason of the decision of this court in Froom v Butcher [1976] QB 286. In that case this court resolved the question, about which there had been some previous disagreement, whether it was contributory negligence about which there had been some previous disagreement, for a front seat passenger not to wear a seat belt. It held that it was. The judge in that case, Nield J, had held that it was not but that, if it was, the appropriate reduction was 25%. In this court the issue turned on the question whether failure to wear a seat belt was contributory negligence. On the hypothesis that it was (as this court found) neither party challenged the judge’s assessment of 20%. In those circumstances the court held that there was no reason to interfere with the judge’s figures.

The court nevertheless considered the correct approach to the appropriate reduction, no doubt in order to give guidance for the future. Lord Denning gave the only substantive judgment, with which Lawton LJ and Scarman LJ agreed. Lord Denning said this, at 295H to 296D, under the heading of “The share of responsibility.”

“Whenever there is an accident, the negligent driver must bear by far the greater share of responsibility. It was his negligence which caused the accident. It also was a prime cause of the whole of the damage. But in so far as the damage might have been avoided or lessened by wearing a seat belt, the injured person must bear some share. But how much should this be? Is it proper to inquire whether the driver was grossly negligent or only slightly negligent? Or whether the failure to wear a seat belt was entirely inexcusable or almost forgivable? If such an inquiry could easily be undertaken, it might be as well to do it. In Davies v Swan Motor Co. (Swansea) Ltd. [1949] 2 K.B. 291, 326, the court said the consideration should be given not only to the causative potency of a particular factor, but also its blameworthiness. But we live in a practical world. In most of these cases the liability of the driver is admitted, the failure to wear a seat belt is admitted, the only question is: what damages should be payable? This question should not be prolonged by an expensive inquiry into the degree of blameworthiness on either side, which would be hotly disputed. Suffice it to assess a share of responsibility which will be just and equitable in the great majority of cases.

Sometimes the evidence will show that the failure made no difference. The damage would have been the same, even if a seat belt had been worn. In such case, the damages should not be reduced at all. At other times the evidence will show that the failure made all the difference. The damage would have been prevented altogether if a seat belt had been worn. In such cases I would suggest that the damages should be reduced by 25 per cent. But often enough the evidence will only show that the failure made a considerable difference. Some injuries to the head, for instance would have been a good deal less severe if a seat belt had been worn, but there would still have been some injury to the head in such case I would suggest that the damages attributable to the failure to wear a seat belt should be reduced by 15 per cent.”

In Lord Denning’s concluding paragraph he said on this aspect of the case:

“In the present case the injuries to the head and chest would have been prevented by the wearing of a seat belt and the damages on that account might be reduced by 25 per cent. The finger would have been broken any way and the damages for it not reduced at all. Overall the judge suggested 20 per cent. And the plaintiff has made no objection to it. So I would not interfere. I would allow the appeal and reduce the damages by £100.”

The court thus adopted a pragmatic approach, eschewing a detailed analysis on every case. As I said the passage at page 296C-D divided the case into three classes of case: (1)  where the damages (that is the injuries) would have been the same whether or not the passenger was wearing a seat belt, in which case there should be no reduction; (2)  where the damages would have been prevented altogether, in which case there should be a reduction of 25%; and (3) where there would have been some damage to the passenger but the damage would have been a good deal less severe, in which case there should be a reduction of 15%. In the instant case it was and is common ground that if the respondent had been wearing a seat belt, his injuries would have been prevented altogether, and that if the principles in Froom v Butcher were applied, the damages would be reduced by 25%.

The guidance in Froom v Butcher has been followed ever since. There have been countless instances of judges of first instance applying the principles and this court has followed them. For instance in J (A child) v Wilkins [2001] PIQR p12 this court, comprising Nourse, Mummery and Keene LJJ, held that the judge could not be faulted for having described himself as being bound by Froom v Butcher, even though on the facts the contributory negligence was not failure to wear a seat belt at all, but failure to wear it appropriately, given that the passenger had a child on her knee. Keene LJ (with whom Nourse and Mummery LJJ agreed) said this at paragraph 15:

“Nor, in my view, can the judge be faulted for having described himself as ‘bound’ by the decision in Froom v. Butcher. I say that because it is clear from his judgment that he was prepared to, and did, consider to what extent the figure of 25 per cent suggested by Lord Denning had been exceeded during the 23 years since that decision, so as to see how readily the courts have been prepared to treat that figure as merely a guideline for the great majority of cases and how readily one should make an exception to it. The fact is that there has been no reported case of which counsel are aware where a passenger’s failure to wear a seat belt has resulted in a finding of more than 25 per cent contributory negligence. I read the trial judge’s comment as indicating simply that he saw the guidelines in Froom v. Butcher as being applicable. In so doing, he did not go wrong.”

Keene LJ then quoted the passage from Lord Denning’s judgment in Froom v Butcher at page 296C-D which I have just quoted and added at [17]:

“Mr Main correctly submits that when those figures were put forward it was not compulsory as a matter of law to wear seat belts. It is now. On the other hand, the Court of Appeal there was aware that legislation to that effect was being contemplated. Reference is made to that in the judgment of Lord Denning at p.249C. So that was an aspect which was taken into account. A reading of that judgment shows that the Court of Appeal was not there seeking to put forward the figure of 25 per cent contribution as an absolute and immutable ceiling in every single case. But it clearly did wish to give guidance which would apply in the vast majority of cases, so that one could avoid what is described as ‘an expensive inquiry into the degree of blameworthiness on either side, which would be ‘hotly disputed’ (see p.296B).”

Thus this court treated the guidelines as extant and effective in 2000 and indeed it had in Capps v Miller, unreported, 30 November 1988, which was not a seat belt case but a case in which the plaintiff, although he had put on a crash helmet as a passenger on a motor bike he had not fastened it.

It was submitted to the judge on behalf of the applicant that the damages should be reduced by more than 50%. The argument was put on two bases. The first was that the court should no longer follow the principles or guidelines in Froom v Butcher and the second was that the principles or guidelines do not apply in a rare or exceptional case and that this is such a case

The judge rejected the first submission, and on two bases. His first basis was that he was bound by Froom v Butcher to apply the principles or guidelines set out in it. The second basis was that it was not appropriate to revisit the principles and guidelines, which remain as valid now as they did in 1976. He rejected the second submission on the basis that this is not a rare or exceptional case. It is a classic case in which, on the one hand, the passenger did not wear a seat belt and, on the other hand, the driver negligently caused a serious accident by failing to keep his car on the road. The judge accordingly reduced the damages by 25%.

The respondent sought permission to appeal on three grounds:

The applicant recognised that ground 3 is the most significant ground, because it raises the question of principle whether Froom v Butcher should not be followed. The applicant further recognised that the judge had held that he was bound by Froom v Butcher to decide the case as he did. He decided to invoke the leap-frog procedure for a direct appeal to the House of Lords which is set out in section 12 of the Administration of Justice Act 1969 (“the 1969 Act”) and to ask the judge to grant a certificate under section 12(1) to the effect that the conditions in section 12(1),(a),(b) and (c) were satisfied.

There is a curiosity here because the first of those conditions, that in section 12(1)(a), is that the “relevant conditions” were satisfied. The only potentially “relevant conditions” in this case are set out in section 12(3)(b) which contains two conditions. The first is that a point of law of general public importance is involved in the decision of the judge and the second is that the decision “is one in respect of which the judge is bound by a decision of the Court of Appeal or of the House of Lords in a fully considered previous decision.” The curiosity is that it is the applicant’s case that the judge was not bound by the principles or guidelines in Froom v Butcher in relation to what Lord Denning called the “share of responsibility” because they were obiter. However that may be, the applicant applied to the judge for a certificate on the basis that he was bound by Froom v Butcher. The judge granted the certificate on the basis that he was so satisfied with regard to ground 3 that a sufficient case had been made out for a direct appeal the House of Lords within section 12(1)(b) and that the respondent consented as required by section 12(1)(c). Although the judge granted the certificate he refused permission to appeal to this court. He could not have granted permission to appeal to the House of Lords. He extended the time for appealing to this court pending a petition to the House of Lords.

The applicant relied upon a detailed petition which rehearsed the arguments of principles which he had raised before the judge and which he now wishes to raise before us. On 11 June the petition was considered by a committee comprising of Lord Hoffman, Lord Walker of Gestingthorpe and Lord Neuberger of Abbotsbury. Permission to appeal was refused “because the petition does not raise an arguable point of law of general public importance”. Their Lordships did not elaborate further.

The respondent consented to the grant of the certificate under section 12 of the 1969 Act in these express terms:

“(1)

That the Defendant within 14 days hereof pays the Claimant’s solicitors a further interim payment in the sum of £1,775,000 which when added to interim payments of £250,000 represents 75% of the agreed damages of £2,700,000.

(2)

The Defendant will not hereafter seek in any way to recover any part of the interim payments of £250,000 and £1,775, 000 in the event of a successful appeal to the House of Lords, to the Court of Appeal or any basis nor will the Defendant seek to vary any order for costs already made or agreed herein.

(3)

The Defendant will indemnify the Claimant in respect of his reasonable costs (on a standard basis) of responding to any appeal and further, the Defendant will indemnify the Claimant in respect of such costs as may be agreed or assessed to be paid on a solicitor and own client basis.

(4)

This agreement is binding on the Parties upon the Defendant making an application to the trial Judge for a Certificate under section 12 of the Act.”

It follows that an appeal to this court would be academic in the sense that, whatever the result, it would not affect the rights and obligations of the applicant or the respondent. In what follows I use the adjective “academic” in that sense.

After the dismissal of his petition the applicant sought permission to appeal to this court within the extension period which the judge had permitted. The application was considered on paper by Waller LJ. In a written decision dated 22 July, Waller LJ refused permission to appeal, on the basis that it was an academic appeal but added that any oral renewal should be made on notice to the respondent.

The applicant now renews his application for permission to appeal on all three grounds. The respondent contests the application on two entirely different bases. The first is that an appeal would be academic and that the court either has no jurisdiction to entertain an appeal or should only do so in an exceptional case and this is not such a case. The second is that an appeal has no real prospect of success, there is no other compelling reason for giving permission to appeal and in the light of the decision of the House of Lords an appeal on ground 3 does not raise an important point of law of public importance. He submits, in particular, that this court, like Mr Justice Gray, is bound by Froom v Butcher, and in any event that it should not depart from the present guidelines.

The agreement reached between the parties which I set out earlier makes this appeal academic. It is, no doubt, for that reason that the applicant does not invite the court to vary the order made by the judge. However, the applicant has agreed to pay the respondent’s costs win or lose. The respondent thus has no interest in the outcome of this appeal and nor does the applicant. It is sought to bring the appeal through the applicant but on behalf of the RBS Group, which includes the applicant’s liability insurer in the instant case, and, perhaps, in the interests of liability insurers in general. It is proposed that Mr Wilson-Smith QC and Mr Matthew Phillips, instructed by the same solicitors, should argue the case on behalf, as it were, of the respondent.

As already indicated, Mr Wilson-Smith QC submits on behalf of the respondent that the court has no jurisdiction to entertain an academic appeal in a private law dispute, alternatively (if it has) that it should only exercise it in an exception case, which this is not. He accepts that there are examples of the court entertaining academic appeals in public law disputes, but submits that there is no support in the authorities for the proposition that that principle applies in private law disputes, at any rate absent a public law element.

Mr William Norris QC submits, on the other hand, that the principle is not so limited. He submits that the court has jurisdiction to entertain an academic appeal in any class of case. He recognises that it will only exercise its jurisdiction in a rare case, but submits that this is such a case. The features he relies upon are these:

I note in passing that, although I have included point (3), it is not entirely clear to me whether the applicant (or more accurately his insurers) really will go so far, since I understand Mr Norris to accept on their behalf that for practical reasons, some form of guidelines are desirable.

I turn to the principles. We were referred to a number of cases. The theme which runs through them all is that neither the Court of Appeal nor the House of Lords will ordinarily entertain academic appeals. So for example in Sun Life Assurance v Jervis [1944] AC 111 the House of Lords declined to hear an appeal which was concerned with the respondent’s rights under an endowment policy. The issue was one of construction. The terms on which leave to appeal were given had the effect that the respondent had no financial interest in the appeal and the only (arguable) public interest would have been to clarify an issue of interpretation for other, hypothetical cases. Viscount Simon L.C said the House was not interested in ‘expressing its view on a (mere) legal conundrum’ (see page 113). But he also made it clear (see page 115) that he was not ‘lay(ing) down a rule for all cases’.

In Ainsbury v Millington (unreported), 12 March 1987, the House of Lords revisited Sun Life Assurance and essentially followed it. Lord Bridge, with whom the other members of the appellate committee agreed, said that it has always been a fundamental feature of our judicial system that the courts decide disputes between the parties between them. They do not pronounce on abstract questions of law when there is no dispute to be resolved. However he added that different considerations may arise in relation to what are called “friendly actions” and conceivably in relation to proceedings instituted specifically as a test case.

In R v SSHD ex parte Salem [1999] 1 AC 450 the House of Lords appear to have drawn a distinction between a dispute between private law rights between private parties and public law cases. Thus Lord Slynn, after referring to the two cases to which I have referred and to R v SSHD ex parte Abdi [1996] 1 WLR 298, said this at page 456G-457B:

“My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v Millington (and the reference to the latter in rule 42 of the Practice Directions applicable to Civil Appeals (January 1996) of your Lordships’ House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.

I do not consider that this is such a case. In the first place, although a question of statutory construction does arise, the facts are by no means straightforward and in other places the problem of when a determination is made may depend on the precise factual context of each case. In this very case, the first issue is expressed to arise ‘On the facts of this case’; the second issue concerns the question whether the Secretary of State had any discretion to record and rescind his decision and whether the discretion was exercised rationally and fairly in the instant case.”

We were then referred to National Coal Board v Ridgway [1987] 3 All ER  562 where there was some disagreement between members of this  court  as  to  the correct approach. The case involved private litigation  between  the  National Coal Board and two members of the National Union of Mineworkers. The essential issue between them involved the true construction of section 23(1) of the Employment Protection  (Consolidation) Act 1978. This court was considering an appeal from the Employment Appeal Tribunal. As a result of the agreement between the parties May LJ took the view that there was no longer any lis between the parties and that the appeal should not proceed: see page 589h. However, the majority, namely Nicholls and Bingham LJJ, decided that the appeal should not be allowed to (?) proceed. As I read in his judgment at page 593j to 594a, Nicholls LJ thought that, if the appeal would be wholly academic so far as the appellants were concerned, the appeal should not be permitted to proceed, but he concluded that an appeal should be allowed to proceed because it was not right to regard the case as one in which there was no longer any matter in actual controversy between the parties: see page 594a.

Bingham LJ approached the problem in a pragmatic manner. He said at page 604d-g:

“More generally, the board submitted that these were not genuine claims but mere pretexts designed to keep the appeal alive. The appellants have never particularised their damage claims, but it may very well be that these claims are an after thought which would never have been pursued but for the appellant’s desire to argue the appeal. That does not, however, even if true, entitle this court to brush the claims aside as being illegitimate or of not consequence. Nor can I regard the desire of the appellants (or their union) to argue the appeal as vexatious or reprehensible. The tribunal’s decision and the judgment of the EAT contain rulings on questions of legal principle which will or may affect a significant number of other cases. The parties have spent time and money litigating these questions up to this level. Much of that time and money would have to be spent all over again if, in any later case raising the same questions, it were sought to challenge the existing ruling of the EAT. That would not in my view be creditable to our legal system. All cases must of course be viewed in the light of their own peculiar circumstances, but I do not think that this could ever have been seen as a case in which the argument on one side or the other was likely to go by default because there was any lack of concern about the outcome. In the event, I am quite sure that the appeal could not have been argued with greater care and skill if the board’s offer to pay the arrears of wages to the appellants had never been made. I do not, however, regard this as being a case in which the court had a choice whether to hear the appeal or not: so far as I know, no agreement had been reached concerning the costs of the appeal, and it would seem that that of itself provides sufficient lis to keep the appeal alive (see Westminster City Council v Croyalgrange Ltd) [1986] 2 All ER 353 at 354, [1986] 1 WLR 674 at 678 per Lord Bridge).”

The tenor of that paragraph is, I think, that that if there did not still exist a lis between the parties because the issue of costs of the appeal had not been agreed, it might have been appropriate to allow it to proceed. Bingham LJ seems to me to have approached the matter pragmatically and in a less rigid way that the respondent contends for before us.

This more pragmatic approach has been adopted since the advent of the Civil Procedure Rules. The leading case is Bowman v Fels [2005] EWCA Civ 226; [2005] 4 All ER 609, when the judgment of this court (comprising Brooke, Mance and Dyson LJJ) was given by Brooke LJ. The parties to private litigation settled the dispute before an appeal, but the appeal in which the Bar Council, the Law Society and the National Criminal Intelligence Service had intervened, was allowed to proceed.

This court ruled at [6] that, since the parties had settled the litigation, in the ordinary way that would be the end of it, citing the Sun Life case and Ainsbury v Millington. It identified the problem at the heart of the appeal at [7]:

“The issue at the heart of the appeal is, however, an issue of public law of very great importance which is causing very great difficulties in solicitors’ offices and barristers’ chambers and in the orderly conduct of contested litigation through the country. The language of s 328 of the 2002 Act has caused great uncertainty within the legal profession, particularly because Parliament has given a much wider meaning to the phrases ‘criminal conduct’ and ‘criminal property’ than was required by the relevant EU directive.”

This court then gave the reasons why all the interveners wanted the court to hear the appeal. It accepted the basis of their argument and said at [10]:

“We were therefore anxious to continue hearing the appeal if we possibly could, so as to comply with the entreaties of all the parties who appeared before us. To send them away empty-handed on an issue of such importance seemed to be not only churlish but also in breach of the overriding objective which illuminates all civil court practice today.”

The court then referred to the speech of Lord Slynn in ex parte Salem to which I referred earlier. In particular it referred at page 12 to the passage in which Lord Slynn indicated that appeals that are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example where a discrete point of statutory construction arises which does not involve a consideration of facts and when a large number of similar cases exist, so that the issue will most likely need to be resolved in the near future in any event.

The court set out its conclusions in [13 – 15] as follows:

“13.

These criteria are amply satisfied in the present appeal. The only difficulty is that the underlying litigation is private law and not public law litigation. However, Lord Slynn was careful to refer to ‘disputes concerning private law rights between the parties to the case’. What is in issue here are public law duties. The contemporary practice of both the House of Lords and this court to permit interventions in private litigation when discrete points of statutory construction are causing great difficulty in a way that was not contemplated when Ainsbury v Millington was decided has created a new scenario within which to consider a point of this kind (compare Callery v Gray [2001] EWCA Civ 1117, [2001] 1 WLR 2112, CA; [2002] UKHL 28, [2002] 1 WLR 2000, HL, where there were many interveners in this private law litigation).

14.

Mr Elliott QC, who appeared for the Law Society, reminded us that in Ainsbury v Millington Lord Bridge accepted that different considerations might arise in relation to what were called ‘friendly actions’ and conceivably in relation to proceedings instituted specially as a test case. This language showed that even the rule on private law litigation permitted of exceptions, and he suggested that an important point of public law, involving a public authority, where there was an additional public interest element arising out of the court's supervisory role in connection with solicitors (as officers of the court), who were perplexed as to the content of their obligations under the 2002 Act when conducting or settling litigation, made this par excellence an appeal over which the court should assume jurisdiction.

15.

We accept these submissions. If it is in the public interest for this court to decide an important and difficult point of law arising out of the interpretation of a recent statute, when both the parties to the case and three interveners of the status of those who appeared before the court are anxious that the court should do so, it is in our judgment unnecessary for the court to resort to artificial devices on which to found its jurisdiction.”

Thus the court was of the view that, even though the litigation was private, if it was in the public interest to entertain the appeal, the court would be free to do so. This seems to me at bottom to be the correct approach. However, although as has been observed several times, the case involved public law duties, I do not read it as limiting the exception to each case, provided that the hearing of the appeal is in the public interest.

I should note in passing that we were referred to Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 which is of course the well-known authority about causation in mesothelioma cases. The applicant submitted that it is an example of a private law case in which the House of Lords considered the appeal even though the litigation had been settled. However it appears that one claimant had not compromised his claim and thus had an interest in the appeal. So the decision to proceed is of no real assistance in the present debate.

Finally, in Bowman v Fels the court paid tribute at [17] to the discussion of the problem by Professor Zuckerman in the 2003 edition of Civil Procedure at paragraphs 23.139 to 23.145. In the more recent second edition of Civil Procedure (2007) Professor Zuckerman said this at paragraph 23.148.

“In sum, the hearing of appeals that are no longer determinative of the rights of the parties will depend on whether the matter is of general public interest and whether entertaining an appeal is the most effective way of resolving the issue and promoting the overriding objective.”

This consideration of the cases leads, in my opinion, to the conclusion that the court will not entertain an appeal between private parties in private litigation unless it is in the public interest to do so. Moreover, this is likely to be a very rare event, especially where the rights and duties to be considered are private and not public. Indeed, so far as I am aware, if we permitted this appeal to proceed, it would be the first case in which the court had ever considered such an appeal, since (as stated above) Bowman v Fels was a case involving an issue of public law.

All will depend upon the facts of the particular case and in what follows I do not intend to be too prescriptive. However, such cases are likely to have a number of characteristics in addition to the critical requirement that an academic appeal is in the public interest. They include the necessity that all sides of the argument will be fully and properly put: see  eg  National Coal Board v Ridgeway, per Bingham LJ at page 604f and Bowman v Fels at [12] and [15]. It seems to me that in the vast majority of such cases, this must involve counsel being instructed by solicitors instructed by those with a real interest in the outcome of the appeal. As Waller LJ observed in the course of the argument, it is far from satisfactory simply to have counsel (or other advocate) advancing such arguments as occur to him without the benefit of instructions from an interested party or group of some kind. Further, before giving permission the court will wish to consider what the other options are and how the proposed issues could otherwise be resolved without doing so by way of academic appeal.

How then should these principles be applied to the facts of this case? I have reached the conclusion that this is not a case in which permission should be granted for this academic appeal. My reasons may be summarised as follows:

In these circumstances and for these reasons I would refuse the application for permission to appeal on the ground that no sufficient reason has been given for the court to entertain an academic appeal. In these circumstances it is not necessary to say anything about the other issues that have been argued.

I agree

I also agree