Flannery v Halifax Estate Agencies Ltd (trading as Colleys Professional Services)

Subject to context-specific exceptions, a professional judge must give reasons sufficient to explain why the decision was reached. A simple conflict of recollection may require only a brief credibility finding. A dispute involving competing analysis, particularly reasoned expert evidence, ordinarily requires the judge to engage with the issues and explain the preference expressed. A failure to give reasons may itself justify an appeal where the judgment leaves the losing party and appellate court unable to determine whether an error of fact or law occurred. If adequate reasons cannot later be supplied and the appellate court cannot decide the merits on the available record, the judgment may be set aside and a new trial ordered.

Mr and Mrs Flannery bought a flat in reliance upon a mortgage valuation stating that no undue hazard from movement was apparent. A later valuation by another employee of the same firm reported structural movement. After the prospective purchaser withdrew, the Flannerys brought a professional negligence claim against the valuers.

The central factual dispute was whether cracking resulted from foundation subsidence or thermal movement. Following an eight-day trial, the county court judge preferred the valuers’ expert evidence and dismissed the claims, but gave no explanation for that preference. The conclusion was open on the evidence, and the judgment disclosed no evident factual or legal misdirection. The appeal therefore raised whether failure to give reasons for a conclusion essential to the decision could constitute a self-standing ground of appeal.

Henry LJ delivered the single judgment of the court.

1. Disposition. The appeal was allowed unanimously with costs. The county court judgment was set aside and a new trial ordered.
2. The duty to give reasons. Subject to limited exceptions, a professional judge has a general duty to give reasons. That duty is a function of due process and justice, as recognised in R v Knightsbridge Crown Court, ex parte International Sporting Club [1982] QB 304. Reasons tell the parties, particularly the losing party, why the case was decided as it was. They also permit assessment of whether an appeal is available and encourage decisions soundly based on the evidence. Consequently, an absence of reasons may itself be a ground of appeal where it is impossible to determine whether the judge erred in fact or law.
3. The required extent of reasons. The content of the duty depends upon the subject matter. In a straightforward conflict between eyewitness accounts, a stated preference for one witness may suffice. Where the dispute involves competing reasoning or analysis, the judge must engage with the issues and explain why one case is preferred. This applies particularly to disputed expert evidence. The court applied the approach in Eckersley v Binnie 18 Construction Law Reports 1: a coherent, reasoned opinion from a suitably qualified expert ordinarily requires a coherent, reasoned rebuttal unless it can properly be discounted for another reason.
4. Application and remedy. The trial judge's substantive conclusion was open on the evidence, and nothing showed that he had misunderstood the evidence or relied on an improper consideration. Nevertheless, the judgment disclosed only his conclusions. It did not reveal why the defendants’ experts were preferred or whether that preference rested on adequate reasons. The Court of Appeal could not supply the missing reasoning by inference. Although requesting supplementary reasons can be an alternative to setting a decision aside, more than a year had passed and realistic reconstruction was impossible. The Court of Appeal also lacked the expert transcripts needed to decide the dispute itself. A new trial was therefore unavoidable.

• Court of Appeal: In Flannery v Halifax Estate Agencies Ltd (trading as Colleys Professional Services) [1999] EWCA Civ 811, the court allowed the plaintiffs’ appeal, set aside the judgment and ordered a new trial.
• Manchester County Court: His Honour Judge Charles James QC preferred the defendants’ expert evidence and dismissed the professional negligence and associated personal injury claims. No citation is stated.