English v Emery Reimbold & Strick Ltd (Practice Note) (DJ & C Withers (Farms) Ltd v Ambic Equipment Ltd, Verrechia v Comr of Police of the Metropolis, Withers (D J & C) (Farms) Ltd v Ambic Equipment Ltd)

A judge must give a clear explanation for the order made. The reasons may be brief, but they must identify the issues vital to the decision and explain how those issues were resolved. A judgment need not address every argument or every factor affecting the assessment of evidence.

Where expert evidence conflicts, the judgment should make apparent why one expert was preferred. On an appeal alleging inadequate reasons, the appellate court must examine the judgment with the evidence and submissions. The appeal should be dismissed if a valid reason for the decision is then apparent.

A costs order requires brief reasons where its basis is not obvious. If a rational explanation is apparent from the circumstances, an appellate court may infer that explanation despite the absence of express reasons.

The Court of Appeal heard three appeals raising a common question about the adequacy of judicial reasons.

• In English v Emery Reimbold & Strick Ltd, the claimant challenged the rejection of expert evidence that a workplace accident had caused a spinal displacement.
• In D J & C Withers (Farms) Ltd v Ambic Equipment Ltd, the claimant challenged the rejection of a case that defects in hydraulic milking equipment had caused mastitis in its herd.
• In Verrechia v Commissioner of Police of the Metropolis, the claimant had recovered damages in respect of half the vehicle parts remaining in issue, but Steel J made no order as to costs without giving express reasons.

The first two appeals alleged that the trial judges had not adequately explained their preferences between competing expert cases. The third challenged both the absence of reasons for the costs order and the exercise of the costs discretion. The central issues were the content of the duty to give reasons, the proper response to deficient reasons, and the circumstances in which reasons for a costs order may be inferred.

1. Disposition. In a single judgment delivered by Lord Phillips MR, to which Latham LJ and Arden LJ contributed, the Court of Appeal dismissed all three appeals.
2. The duty to give reasons. Justice requires the parties to be able to understand why one has won and the other has lost. A judgment must also permit an appellate court to understand the basis of the decision when considering permission to appeal. The judge need not address every argument or identify every consideration affecting the assessment of evidence. The issues vital to the conclusion must, however, be identified and their resolution explained. The court approved and clarified the approach in Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377.
3. Conflicting expert evidence. A judge should explain why the evidence of one expert has been accepted and that of another rejected. The explanation may include consistency with the facts found, inherent credibility, qualifications, authority or objectivity. Where qualification or authority is the only available basis for choosing between experts, that basis should be made plain.
4. Deficient reasons and appeals. A trial judge asked for permission to appeal on the ground of inadequate reasons should consider whether the judgment is defective and, if necessary, provide additional reasons. An appellate court may adjourn a permission application and invite the trial judge to supply reasons. Once permission has been granted, the appellate court should consider the judgment with the material evidence and submissions. If the reason for the decision is apparent and valid, the appeal must be dismissed; otherwise the court must decide whether to rehear the matter or order a new trial. In both English and Withers, the underlying material disclosed cogent reasons for the trial judges’ conclusions despite deficiencies in their judgments.
5. Costs. Reasons for a costs order may be express or clearly implicit. Brief reasons should be given when the basis of the order is not obvious, particularly where the court departs from the ordinary consequence of success. An appellate court may nevertheless infer an apparent rational explanation, proceeding on the assumption that the trial judge had good reason for the order. Steel J was entitled to treat Verrechia as a practical draw because each side succeeded on half the items in issue. The court further observed that, under Civil Procedure Rules 1998 rule 44.3, an issues-based costs order should be used only where a proportionate or date-based order is impracticable. A percentage order will often be fairer and less costly to assess.

• Court of Appeal: By [2002] EWCA Civ 605, dismissed the appeals in English, Withers and Verrechia.
• Queen’s Bench Division, Stoke-on-Trent District Registry: His Honour Judge Rubery, sitting as a deputy High Court judge, found that Mr English’s spinal displacement pre-dated the admitted workplace accident. No neutral citation was stated.
• Technology and Construction Court, Liverpool District Registry: His Honour Judge MacKay dismissed Withers’ claim that defects in Ambic’s milking system caused mastitis. No neutral citation was stated.
• Queen’s Bench Division: Steel J awarded Verrechia £37,300 plus interest in respect of 20 vehicle parts, dismissed the remainder of the claim and made no order as to costs. No neutral citation was stated.