DJ & C Withers (Farms) Ltd v Ambic Equipment Ltd

An appellate court should be able to understand, from the judgment itself, why one expert’s evidence was preferred to another’s. Reasons may be succinct, but a bare or purely referential preference can constitute a serious procedural or other irregularity where the expert evidence is material to the result. The appeal court must consider whether the deficiency gives the proposed appeal a realistic prospect of success and whether the outcome might have been different had the evidence been properly analysed. Proportionality between the amount at stake and litigation costs does not displace the basic principle that legal wrongs should be remedied.

The claimant sought damages in negligence for a mastitis outbreak allegedly caused by defective milking equipment installed by the defendant. The Technology and Construction Court dismissed the claim, finding that the equipment had no propensity to cause mastitis and had not caused the outbreak. The judge also made contingent findings on limitation and damages.

The claimant sought permission to appeal, arguing that the judge had preferred the defendant’s expert evidence without giving adequate reasons and had thereby failed to explain the central conclusion on causation. The application concerned whether those deficiencies created a realistic prospect that the judgment would be set aside or a retrial ordered.

1. Permission granted. The Court of Appeal held that the claimant had a realistic prospect of establishing that the first-instance judgment contained a serious procedural or other irregularity. The application was not rejected merely because a retrial would be expensive and the likely damages were modest.
2. A judge should explain, however briefly, why one expert’s evidence or opinion is preferred to another’s. It is insufficient simply to state a preference or adopt counsel’s contention by reference. The explanation must be discernible from the judgment itself, although the reasons need not be elaborate.
3. Flannery v Halifax Estate Agencies Ltd [1999] BLR 107, also reported at [2000] 1 WLR 377, illustrated the significance of an unexplained preference between experts. Unlike that case, the defendant contended that the expert evidence here was not decisive because the factual findings independently supported the conclusion.
4. That contention did not eliminate the arguable error. The claimant’s expert evidence directly contested the significance of the principal factual findings, including the absence of earlier mastitis and the outbreak on a neighbouring farm. The judge’s failure to analyse that evidence, including the evidence concerning somatic cell counts, was therefore capable of affecting the central conclusion that the outbreak was environmental rather than machine-induced.
5. Under Civil Procedure Rules 1998, rule 52.11(3)(b), permission could properly be granted where the decision was arguably unjust because of a serious procedural or other irregularity. The application’s costs were ordered to be costs in the appeal.

• Court of Appeal (Civil Division): permission to appeal from the Technology and Construction Court was granted. The costs of the application were ordered to be costs in the appeal.
• Technology and Construction Court, High Court: judgment was given on 4 May 2001 dismissing the negligence claim, subject to contingent findings on limitation and unsubstantiated losses.