Stratton v Brown

Permission to appeal may be granted on a renewed application where the proposed grounds disclose an arguable defect in the first-instance judge’s reasoning on material issues. This remains so where the judge heard extensive medical evidence and gave reasons for preferring one expert. Appellate restraint does not prevent examination of reasoning that is arguably flawed. A strong adverse observation about witnesses requires care: if it forms part of the reasoning, the supporting evidence should be analysed. The Court granted permission generally.

The claimant brought a personal injury claim arising from a semi-contact karate session. Liability to pay a proportion of damages was admitted, so the High Court hearing before Morison J focused on quantum and the medical issues. After a four-day hearing, the judge preferred the defendant’s neuropsychiatric expert and awarded modest damages.

Permission to appeal was refused on paper by Simon Brown LJ. On renewal, the claimant challenged the reasoning supporting the preference for the defendant’s evidence, the treatment of an earlier incident, the claimant’s condition absent the accident, and a critical finding about the claimant’s parents. The central issue was whether those complaints disclosed an arguable case warranting appellate examination.

The Court of Appeal, in the judgment of Pill LJ with which Nourse LJ agreed, allowed the renewed application and granted permission to appeal generally. It did not determine the merits of the proposed appeal.

1. Arguable defects in reasoning. The claimant faced a difficult task in challenging findings based on medical evidence heard at length, particularly where the trial judge had explained why he preferred the defendant’s expert. That consideration did not prevent permission where there was an arguable case that the reasoning itself was defective and required examination and review.
2. Issues requiring review. The arguable defects concerned the judge’s five stated reasons for preferring Dr Bird’s evidence, together with his treatment of an earlier incident in 1992 and the question of what the claimant’s condition would have been after 1995 if the karate incident had not occurred.
3. Finding concerning the parents. The judge had made a strong critical remark about the claimant’s parents. If the remark was gratuitous, that was a concern in itself. If it formed part of the reasoning, the evidence supporting such a strong finding should have been analysed. The absence of that analysis provided a further arguable criticism.
4. Order. The application was allowed and permission to appeal was granted generally.

1. Court of Appeal (Civil Division): Simon Brown LJ had refused permission to appeal on paper. On renewal, Pill LJ and Nourse LJ allowed the application and granted permission to appeal generally.
2. High Court of Justice, Cardiff District Registry: Morison J heard the personal injury claim on quantum on 20 February 2002 after partial liability had been admitted. He preferred the defendant’s medical evidence and awarded modest damages.