S & Ors, Re

Permission to appeal should be granted where proposed grounds raise arguable issues of general importance or provide a proper opportunity to examine the application of existing guidance. An appeal against factual findings will generally lack a real prospect of success where the findings depend on the trial judge’s assessment of witnesses and the Court of Appeal would merely be asked to substitute its own view. In abuse claims, apportionment of damage may raise issues requiring appellate consideration, particularly where the defendant’s breach involves the very abuse from which the claimant was placed in care for protection.

These applications arose from claims by former residents of private children’s homes operated by the Bryn Alyn Community. The claims concerned sexual and physical abuse, direct negligence, vicarious liability, limitation and damages. Mr Justice Connell found for 13 of 14 claimants. Permission had already been granted in three cases on the effect of Lister & Others v Hesley Hall Limited [2001] 2 WLR 1311 and section 33 of the Limitation Act 1980.

The claimants sought further permission on direct negligence, factual findings and damages. The defendants sought permission concerning findings of direct negligence and abuse. The central questions were whether the proposed appeals had a real prospect of success and whether the issues concerning liability and apportionment warranted consideration by the Court of Appeal.

1. Claimants’ applications. Permission to appeal against the factual findings was refused. The findings depended substantially upon the trial judge’s assessment of witnesses. The Court of Appeal would not substitute its own view where the proposed appeal had no real prospect of success.
2. Permission was granted to the three relevant claimants on the alternative direct-negligence ground. It was arguable that the judge should have found negligence arising from matters including inadequate systems of care, untrained or unsupervised staff, acceptance of vulnerable children without suitable qualifications or supervision, and unsupervised trips. It would have been unreal to consider the Lister & Others v Hesley Hall Limited issue without considering that alternative basis of liability.
3. Permission was granted on the assessment of damages, except in relation to interest. The proposed appeal raised general issues concerning apportionment between damage caused by the defendant and damage arising from other life events or abuse. It also raised the particular question how apportionment should operate where the abuse was the very harm against which the claimant was supposed to be protected.
4. The guidance in Coxon v Flintshire County Council [2000] EWCA Civ 302, including the recognition that apportionment may be a matter of judgment or feel, warranted consideration across the range of cases. The court also considered it arguable that reasons for individual apportionments should be sufficiently explained, especially where medical opinions differed. The interest issue remained within the trial judge’s discretion.
5. Defendants’ applications. Permission to appeal was refused. There was evidence capable of supporting the judge’s conclusions on direct negligence and sexual abuse, and those conclusions were essentially findings of fact. Costs of the applications were costs in the appeal.

• Court of Appeal (Civil Division): permission to appeal granted in part to the claimants on alternative direct negligence and quantum grounds, refused on factual findings and interest; permission sought by the defendants refused.
• Queen’s Bench Division, Mr Justice Connell: tried 14 claims between February and April 2001, finding for 13 claimants and dismissing one claim.