Rawlinson v Cooper

A second appeal is permissible only where it raises an important point of principle or practice, or there is another compelling reason for the Court of Appeal to hear it. That threshold is especially demanding in a case-management appeal. Under the modern civil procedure rules, a first appeal is ordinarily a review, not a rehearing. The appellate court may interfere only where the lower decision was wrong or unjust because of a serious procedural or other irregularity.

Where the first-instance decision-maker misunderstood the essential nature of evidence, the first appellate judge may exercise the discretion afresh. A disagreement about the evidential value of additional expert evidence, even where the financial consequences are substantial, does not ordinarily justify a second appeal.

The claimant suffered severe brain injury in a road accident. Liability was admitted, but the value of the claim depended substantially on her life expectancy. She sought permission to rely on further expert evidence concerning statistical evidence about life expectancy for patients with spinal injuries.

The district judge refused permission. Mitting J allowed the first appeal, concluding that the district judge had misunderstood the nature of the proposed evidence and that the issue could not justly be resolved without it. The defendant sought permission for a second appeal under section 55 of the Access to Justice Act 1999.

The central issues were whether the first appellate judge had misunderstood the district judge’s decision, whether he was entitled to exercise the discretion afresh, and whether the proposed second appeal satisfied the statutory threshold.

1. Appeal dismissed. The Court of Appeal unanimously held that the proposed second appeal did not raise an important point of principle or practice and disclosed no other compelling reason for the court to hear it.
2. The material report had been put before the district judge, whether or not he read it. The district judge had therefore either misunderstood the report or misunderstood the evidence it contained. Mitting J was entitled to conclude that the district judge had misunderstood the essential nature of the evidence.
3. Where the lower court has misunderstood the essential nature of the evidence, the first appellate judge must exercise the relevant discretion afresh. Alternatively, if Mitting J considered that refusing permission would have exceeded the generous ambit within which reasonable disagreement was possible, his decision was sustainable on that basis.
4. The court applied the approach explained in G v G (Minors: Custody Appeal) and Tanfern Ltd v Cameron-MacDonald. Under CPR, r 52.11(3), an appeal is ordinarily limited to a review and may succeed only where the decision was wrong or unjust because of a serious procedural or other irregularity.
5. The proposed grounds concerning reasons, the opportunity to address issues, and whether material had been before the lower court did not establish a qualifying second appeal. Nor did the substantial financial consequences of the decision. Proportionality supported ensuring that all potentially relevant evidence was available to the trial court.
6. Appeal dismissed with costs on an indemnity basis from the date permission was granted, including the costs of the application to set aside. The appellant’s costs were to be assessed under the Community Legal Services Regulations 2000.

• Court of Appeal (Civil Division): [2002] EWCA Civ 392. The second appeal was dismissed with costs.
• High Court, Queen’s Bench Division: Mitting J allowed the first appeal and permitted the additional expert evidence, while allowing the defendant to instruct a further expert if desired.
• District judge: Permission to rely on the additional expert evidence was refused.