Brown v London Borough of Richmond Upon Thames

This is the judgment of the court.

Further to the judgment handed down on 26^th October 2012 in which we allowed the appeal, the parties were unable to agree consequential matters and filed substantial written submissions with the court. We have considered those submissions in detail. We do not propose to repeat their contents.

Three issues emerge for our consideration:

Having considered Garratt v Saxby [2004] 1 WLR 2152, we consider that the original trial judge, HHJ Lamb QC, should deal with the matter on remission. Factors of economy and familiarity with the case favour his continuation with the matter. We do not consider that a conscientious judge would have a difficulty in resuming the matter, notwithstanding any disclosure made to him post-trial.

The parties themselves do not take a markedly different view and Judge Lamb QC has indicated to them a willingness to continue.

As stated in paragraph 54 of the judgment, the matter is remitted for the judge to consider the question of the impact of the breakdown of the Appellant’s marriage in relation to the finding that damages for loss of earnings ceased with effect from 30^th June 2004.

If need be, the judge should consider the appropriate period for which a loss of earnings claim should run. It will be a matter for the judge to decide whether to admit any further evidence. However, since the parties had the opportunity to present evidence at the original trial, we would encourage him not to admit any further evidence.

The Respondent has indicated a wish further to argue the point arising from the decision in Dickins v O2 Plc [2008] EWCA Civ 1144. The Appellant opposes this. We refer to paragraph 21 of the judgment. This issue was not pursued on appeal by the Respondent notwithstanding the judge’s adoption of the approach in Dickins. That being the case, the judge’s ruling, after argument at trial, remains in place for the purposes of this case. We would not permit the Respondent to re-open the point in those circumstances.

The Appellant has won the appeal. He was, however, successful in relation to a single issue out of four identified in our judgment. Time was taken in considering unsuccessful arguments relating to Working Time and Grading. We also devoted considerable time to an unsuccessful attempt to backdate the date of breach to 2000. The Grounds of Appeal were opaque and far from helpful.

Mr Green’s initial oral submissions failed to make clear the point upon which he was ultimately successful. It only came into focus relatively late in the proceedings before us. In those circumstances, whilst the successful Appellant should have his costs, they should be limited to reflect both the lack of success on certain issues pursued, and the late emergence of the successful argument.

We would reflect these factors by awarding the Appellant 50% of the costs of the appeal, such costs to be assessed if not agreed.

We invite the parties to submit a draft order based on this further judgment. We do not wish to receive any further submissions from the parties.