Adams v Autolec Diesel Services (Wales) Ltd

An appellate court will rarely grant permission where the proposed appeal principally challenges the trial judge’s evaluation of credibility. The trial judge is best placed to assess oral evidence, and the appellate function is review rather than rehearing. A judge does not fail to address credibility by considering alleged defects in evidence but declining to make positive findings where adverse findings would not affect the material findings required to decide the claim. A defendant alleging failure to mitigate bears a difficult burden of proving unreasonableness in all the circumstances. Permission should be refused where the proposed appeal has no real prospect of success and no other reason justifying permission.

This was a personal injury claim arising from a whiplash injury caused by a car accident. Liability was accepted, and the trial in Swansea County Court concerned quantum. Mr Recorder Vosper QC gave judgment on 1 December 2000 and later refused permission to appeal on paper.

The defendant applied to the Court of Appeal for permission, arguing that the recorder had failed properly to address the claimant’s credibility. It also relied on the claimant’s refusal of part-time work and a period of disabling osteoarthritis as alternative grounds affecting mitigation, causation and loss of earnings. The central issue was whether the proposed appeal disclosed any arguable error warranting appellate intervention.

1. Disposition. Lord Justice Rix refused permission to appeal. The proposed appeal had no real prospect of success and there was no other reason why permission should be given.
2. Credibility and appellate review. The recorder had not ignored credibility. He devoted pages 22 to 27 of his judgment to four credibility points raised in closing submissions, dealt with each in detail, and explained that even adverse findings would not affect the material findings elsewhere. That was a legitimate approach. The proposed appeal was essentially concerned with evaluating oral evidence, whereas the trial judge was best placed to assess credibility and the Court of Appeal conducts review rather than a rehearing.
3. Underlying factual assessment. The defendant’s central case was that the claimant’s business would have failed because of difficulties between the claimant and his co-director. That argument was critically undermined by the co-director’s evidence that the business would probably have continued but for the claimant’s injury. This also weakened the broader attack on the claimant’s credibility.
4. Mitigation. Whether the duty to mitigate has been fulfilled depends on the reasonableness of the claimant’s conduct in all the circumstances. The defendant bears a difficult burden of proving unreasonableness. The recorder was entitled to conclude that the defendant had not discharged that burden in relation to the refusal of part-time work at B&Q.
5. Osteoarthritis. The defendant’s use of the osteoarthritis evidence remained unclear. The recorder’s explanation was nevertheless satisfactory: to the extent the condition disabled the claimant, his partner and others would have carried him in the business had it survived. There was therefore no sufficient basis for reopening the assessment of past loss of earnings.

Order: application for permission to appeal refused.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 801, permission to appeal was refused.
• Swansea County Court: Mr Recorder Vosper QC assessed quantum after liability for the whiplash injury had been accepted. Judgment was given on 1 December 2000, and the recorder subsequently refused permission to appeal.