Mutuma v London Borough Of Barnet

On an application for permission to appeal, the Court of Appeal may adjourn the application where a document apparently material to the trial findings is missing and its history requires clarification. The respondent should have an opportunity to explain the document’s existence, disappearance or substitution before the court decides whether permission should be renewed. Apparent inconsistencies in a claimant’s account may be insufficient, by themselves, to determine arguability. Their significance must be assessed alongside the trial judge’s credibility findings and the evidential importance of the missing material.

The applicant brought a county court action concerning a back injury allegedly sustained while lifting a heavily disabled patient during his employment. The defendant disputed both the mechanism of the accident and whether it had occurred, relying on evidence that the prescribed hoist procedure did not require a manual lift.

The county court rejected the applicant’s account, accepted the evidence of a fellow worker, and concluded that the injury was more likely to have resulted from the applicant’s use of an unauthorised lifting method. Judge Roger Cooke refused permission to appeal.

Before the Court of Appeal, the applicant alleged that a material MED4 risk-assessment form, apparently created shortly before the accident, had disappeared and may have been replaced by an earlier document. The central issue was whether the missing document required clarification before the application for permission could be determined.

Lord Justice Sedley, sitting alone, adjourned the application for permission to appeal.

1. The applicant’s differing accounts of the accident were not, in themselves, necessarily a sufficient basis for refusing permission. The discrepancies were not obviously radical or serious, although the court recognised that it might be wrong in that provisional assessment.
2. The trial judge had also accepted the evidence of the fellow worker as credible and reliable. That finding formed an important part of the evidential context and meant that the missing MED4 could be central to the fairness and assessment of the case.
3. The defendant’s own evidence appeared to confirm that a risk-assessment form concerning the patient had been completed in August 1994, approximately one month before the accident. The form was absent from the trial bundle, while a different document relating to the hoist procedure had been produced.
4. Before deciding whether permission should be granted or renewed, the respondent had to be given an opportunity to explain in writing what had happened to the relevant MED4 and how the matter had been dealt with at trial.

The judgment was to be transcribed at public expense. The respondent was allowed 28 days to provide its written explanation to the court and the applicant. The applicant could then renew the application if dissatisfied. The question whether the respondent should be heard orally on any renewed application was reserved, and the applicant was reminded of the potential costs consequences of any appeal.

Order: application adjourned for the stated inquiries.

1. Central London County Court: The applicant’s action was rejected after the trial judge accepted the defendant’s evidence and concluded that the injury was more likely to have resulted from the applicant’s own lifting method. Judge Roger Cooke refused permission to appeal.
2. Court of Appeal (Civil Division): The application for permission to appeal was adjourned so that the defendant could provide a written explanation concerning the missing MED4 document. The applicant was given liberty to renew the application.