Rawlinson v Cooper

Permission to appeal may be justified where an appellate judge exercises discretion afresh on the basis that a lower judge wrongly assessed material that was never before him. The appellate court must also consider whether the decision was affected by the use of fresh evidence without an appropriate application for its admission. Such issues may be sufficiently arguable even though their ultimate effect on the decision remains to be determined.

In a personal injury action, case-management orders limited life-expectancy evidence to two expert reports. Deputy District Judge Ashton refused an application for a further report from Dr Gardner without having seen it. Mitting J allowed an appeal, having read the report, regarded it as useful statistical material, and ordered that it be available at trial. The defendant applied to the Court of Appeal for permission to appeal, arguing that Mitting J had wrongly treated the district judge as having assessed a report that was not before him and had relied on fresh material without an appropriate application. The issue was whether those matters were sufficiently arguable.

Permission to appeal granted. The application concerned the effect of fresh expert material on an appellate case-management decision.

1. The original case-management order limited the life-expectancy evidence to reports from Dr Walton and Dr Burt. Deputy District Judge Ashton refused an application for a further report from Dr Gardner. He considered the issue largely speculative and thought that further expert assessment would not assist. He had not read Dr Gardner’s report.
2. Mitting J allowed the appeal after reading Dr Gardner’s report. He considered that it added useful statistical information and concluded that the order concerning expert evidence should be varied.
3. That conclusion was arguably based on a material mistaken premise. Because Dr Gardner’s report had not been before the deputy district judge, the deputy district judge could not have made a mistaken assessment of its contents.
4. It was therefore necessary to consider whether that error vitiated Mitting J’s decision, particularly as the fresh material had been considered without an appropriate application for it to be introduced for the hearing. Those issues were sufficiently arguable to justify permission to appeal.

Costs were ordered to be costs in the appeal.

1. Court of Appeal (Civil Division): On 9 November 2001, Lord Justice Latham granted permission to appeal and ordered that costs be costs in the appeal.
2. High Court: On 19 July 2001, Mitting J allowed an appeal from the case-management decision and ordered that Dr Gardner’s report form part of the material for trial.
3. Deputy District Judge Ashton: Refused the application to vary the case-management order to permit the further expert report.