Pittkin v Watts Blake Bearne & Co Plc & Ors

Permission to appeal against factual findings and liability apportionment should be refused where the trial judge considered the relevant evidence and the proposed challenge merely seeks to reopen an available finding of fact. A costs issue may nevertheless justify permission where the judge failed adequately to reflect the significance of a rejected settlement offer. Under Rule 44.3(c), the court must have regard, in appropriate circumstances, to an admissible offer to settle drawn to its attention.

The claimant was injured when his motorcycle slipped on clay deposited on a minor road. The county court found that vehicles operated by both remaining defendants had deposited the clay, held them negligent, and apportioned liability 60 per cent to ECC and 40 per cent to WBB.

WBB renewed its application for permission to appeal. It challenged the finding that its vehicles contributed to the clay and the apportionment of liability. It also challenged the costs order, relying on a settlement offer which ECC had rejected. The central questions were whether the factual and apportionment challenges had a real prospect of success and whether the costs issue merited consideration on appeal.

1. Factual finding and liability. Permission to appeal was refused on WBB’s challenge to the finding that its vehicles contributed to the clay. The Recorder had considered the evidence relied on by WBB, including evidence identifying clay outside ECC’s works, and had carefully set out the evidential basis for finding that the clay was a mixture deposited by vehicles of both defendants. The finding was evidentially available and the proposed appeal was an attempt to reopen a pure finding of fact.

2. A trial judge’s conclusion is not inadequately reasoned merely because it is stated in a single sentence, provided that the judgment read as a whole makes clear the evidential basis and reasoning leading to it. Permission was therefore refused on this aspect of the application.

3. Apportionment. Permission was refused on WBB’s challenge to the apportionment of liability between WBB and ECC.

4. Costs. The Recorder ordered ECC to pay 70 per cent and WBB 30 per cent of the claimant’s costs. A Part 36 offer had been made on a basis which, as between the defendants, would have required each to bear half of the claimant’s costs. ECC rejected that basis, and the eventual result arguably left ECC substantially worse off. Although the Recorder had considered the offer, it was reasonably arguable that the costs order did not adequately reflect the merits arising from ECC’s rejection of it.

5. Rule 44.3(c) requires the court, in appropriate circumstances, to have regard to any payment into court or admissible offer to settle drawn to its attention. The costs issue accordingly merited examination by the Court of Appeal. Permission to appeal was granted on the costs point alone, with the costs of the permission application reserved to the court hearing the appeal.

• Court of Appeal (Civil Division): On 15 May 2001, Lord Justice May refused permission to appeal on the factual finding, negligence and apportionment issues, but granted permission on the costs issue alone.
• Torquay & Newton Abbot County Court: On 8 February 2001, Mr Recorder Brock QC found both remaining defendants liable for the clay on the road, apportioned liability 60 per cent to ECC and 40 per cent to WBB, and ordered ECC to pay 70 per cent and WBB 30 per cent of the claimant’s costs.