Guntrip v Ministry of Defence

Permission to appeal may be granted where the lower court’s reasoning arguably involved a material misdirection, where the evidential basis for a significant finding is properly contestable, or where a substantial point remains arguable despite not having been raised below. The Court of Appeal may reserve the admissibility of a new argument and applications to adduce fresh evidence for the substantive appeal. A stay may be confined to the disputed element of the judgment and adjusted to reflect contributory negligence.

The Ministry of Defence applied for permission to appeal against a county court award of damages to Kenneth William Guntrip. The challenge concerned an accommodation award of £92,160, together with associated costs, based on the finding that bungalow accommodation had become reasonably necessary because of injuries for which the Ministry accepted substantial liability.

The Ministry alleged misdirection concerning mitigation, insufficient evidence supporting the accommodation finding, and error in calculating the consequential loss. It also sought a stay and raised a new argument based on Roberts v Johnstone [1989] QB 878.

1. Permission and stay. The Ministry’s application for permission to appeal succeeded. A stay was granted in respect of the accommodation element of the award, limited to £74,411.20 after applying the judge’s 20 per cent finding for contributory negligence.
2. Accommodation need. The judge below had asked the correct substantive question: whether provision of a one-storey property had become a reasonable necessity as a result of the claimant’s compensable injuries. However, the judge’s reference to a duty on the defendants to establish failure to mitigate raised a material concern. The claimant had to prove that nothing short of moving to bungalow accommodation would meet his present needs; mitigation did not arise on these facts.
3. The evidential basis for the finding was also properly arguable. The claimant’s principal difficulties with stairs appeared potentially attributable to chronic back problems and obesity rather than the compensable ankle injury. The Court left that issue for determination by the full court on the substantive appeal.
4. Assessment of loss. The accommodation award had been calculated by applying a 12-year multiplier to the annual rental cost of bungalow accommodation. The Ministry relied on an approach adopted in Roberts v Johnstone [1989] QB 878, which, if permitted and accepted, would materially reduce the award. The Court reserved the question whether the new argument could be advanced on appeal, subject to possible prejudice to the claimant.
5. Applications to introduce fresh evidence, by either party, were likewise adjourned to the substantive appeal. The costs of the applications were ordered to be costs in the appeal.

• High Court / St Helen’s County Court: Judge Phipps awarded damages on 8 February 2002, including £92,160 for accommodation and associated costs.
• Court of Appeal (Civil Division): The Ministry’s application for permission to appeal was allowed. A stay was granted for the accommodation element, and substantive issues were reserved for the full appeal.