Priestley v Harrogate Health Care NHS Trust

In civil proceedings, a judge’s duty is to reach the correct result while preserving each party’s fair opportunity to present its case. A judge may express a provisional view of expert evidence so that counsel can respond, and may ask searching questions where further assistance is needed. Such conduct is permissible if it remains within the bounds of admissibility, courtesy and restraint. It does not itself establish apparent bias or an unfair hearing. The judge must make the relevant factual decision personally and is not bound by expert opinion. An appellate court will be slow to interfere with findings based on witnesses whom the trial judge heard. An intervention open to criticism will not justify an appeal where it did not prejudice the hearing or could not have affected the outcome.

The claimant, a nurse, brought a damages claim after admitted negligent birth procedures caused continuing faecal incontinence and episodes of severe anal pain. Liability was admitted, leaving causation and quantum for determination. The High Court found causation established and held that the claimant was and would remain unemployable. The Trust accepted the causation finding but challenged the employability finding. It argued that the evidence did not support the conclusion and that the judge’s provisional view, intervention with counsel, and questioning of an expert created an unfair hearing and apparent bias. The appeal concerned both the evidential basis of the finding and whether the judge’s conduct crossed permissible limits.

The appeal was dismissed unanimously. Lord Justice Mantell delivered the first judgment. Lady Justice Hale and Lord Justice Aldous agreed.

1. Evidential challenge. The trial judge had accepted the claimant’s evidence as credible, accurate and reliable, preferring it to contrary evidence and opinions. The finding that she could not undertake suitable employment was properly reached. An appellate court is slow to interfere with factual findings based on the trial judge’s assessment of witnesses whom he saw and heard (p. 35).
2. Provisional view. The judge’s indication at transcript p. 250 that the joint expert report would not necessarily be decisive was proper. A judge may disclose a tentative view during the hearing to allow counsel to adapt their submissions. Lord Justice Aldous emphasised that the judge had to decide employability himself and could not surrender that decision to the experts.
3. Intervention with counsel. The judge’s intervention might fairly attract some criticism because it appeared to prevent a possible tactical mistake by the claimant’s counsel. Nevertheless, it could not have affected the outcome, which rested on the wider evidence. It therefore provided no sufficient basis for an appeal.
4. Questioning of the expert. A civil judge need not remain entirely passive. Where further assistance is required on a material issue, the judge may, and sometimes must, pursue it, including by asking searching questions, provided the intervention remains within admissibility and is conducted with courtesy and restraint. The questions to Dr McGuire addressed the significance of unpredictable attacks and did not exceed those limits (p. 274 and following). Lady Justice Hale contrasted civil proceedings with a jury trial, where judicial interventions must not influence the jury’s assessment of facts or witnesses.

The appeal was dismissed with costs assessed at £28,160.39.

1. Court of Appeal (Civil Division): In [2002] EWCA Civ 183, the appeal was dismissed with costs.
2. High Court of Justice, Queen’s Bench Division: Mr Roger Thorn QC, sitting as a deputy High Court judge, found causation established and held that the claimant was and would remain unemployable.