Bain v Abbey Life Assurance Company Ltd

An appellate court should not interfere with a case-management decision about whether to determine a preliminary issue unless the judge erred in principle or reached a plainly wrong conclusion. Where the issue depends on facts that have not yet been established, deciding it on assumed facts may create further appeals and wasted costs. The court may properly leave questions of relevance and admissibility to the trial judge, who can rule on them as the evidence develops. Applications for permission to appeal against such decisions will fail where there is no real prospect of showing such an error.

Gordon Bain brought proceedings against Abbey Life concerning alleged negligence in preparing employment references after the termination of his agency relationship. A preliminary issue asked whether, in deciding whether Abbey Life had breached a duty of care, it was relevant to investigate whether earlier disciplinary action or penalties had been justified.

The High Court judge declined to determine the issue before trial. He considered that circumstances might exist in which a reference was unfair despite accurately recording disciplinary matters, and that the relevance of the underlying procedures should be assessed on the evidence. Abbey Life renewed its application for permission to appeal.

1. Application refused. The application had no real prospect of success.
2. An appellate court should interfere with a decision of this nature only where the judge erred in principle, failed to take account of a material consideration, gave inappropriate weight to a relevant matter, or reached a plainly wrong conclusion.
3. The judge was entitled to balance the possible saving from deciding a legal issue on assumed facts against the risk of incurring additional expense and delay through appeals on an inadequate factual foundation. The reports contain repeated warnings against taking procedural short cuts by determining preliminary issues prematurely.
4. The judge was also entitled to leave the relevance of evidence concerning the disciplinary procedures to the trial judge. The trial judge could make interim rulings about what evidence was relevant or admissible and determine, on the full evidence, whether the references were fair.
5. The existence of a duty of care in preparing references, and the fairness of recording disciplinary matters, depended on the circumstances. It could not be ruled out in advance that a reference might be unfair merely because the disciplinary action had been accurately recorded.

Order: Application refused.

• Court of Appeal (Civil Division): On 24 April 2001, Lord Justice Chadwick refused Abbey Life’s renewed application for permission to appeal against the order of His Honour Judge Weeks QC.
• Bristol Mercantile Court: The judge declined to determine the preliminary issue before trial and left questions of relevance and admissibility to the trial judge.