Hayes & Ors v Transco Plc

An appellate court may allow an appeal under Civil Procedure Rules 1998 CPR 52.11(3)(b) only where a serious procedural irregularity has made the lower court’s decision unjust. The existence of an irregularity, or collateral unfairness, is insufficient; all the circumstances must be assessed.

Case-management powers include limiting cross-examination, but their exercise must remain fair. A judge may act outside the acceptable range of permissible decisions by refusing relevant evidence on a central issue, while admitting comparable late evidence from the other party, and by unexpectedly imposing a drastic limit on cross-examination. In that situation a new trial may be required.

Three present or former service engineers claimed contractual disturbance allowances following changes to their alleged normal depots. The claim depended on whether a 1993 agreement remained incorporated into their contracts after a 1995 change to site-start working, and whether they retained a normal depot.

His Honour Judge Trigger, sitting in the Birkenhead County Court, found for the claimants on 6 November 2002. Transco appealed on the merits and, separately, under CPR 52.11(3)(b), alleging serious procedural irregularity. The Court of Appeal allowed the procedural appeal without deciding the contractual and factual issues, and ordered a new trial.

1. The appeal was allowed and a new trial ordered. The court did not decide the contractual merits or whether the service engineers retained a normal depot after the 1995 working changes.

2. Under Civil Procedure Rules 1998 CPR 52.11(3)(b), a serious procedural irregularity alone does not suffice. The lower court’s decision must be unjust because of that irregularity. That question requires assessment of all the circumstances.

3. The court accepted that trial judges have broad case-management powers, including power to control evidence and limit cross-examination. Following Darren Watson v Chief Constable of Cleveland Police [2001] EWCA Civ 1547, an appellate court will interfere with a restriction on cross-examination only where it falls outside the acceptable range of legitimate decisions.

4. The claimants had been allowed to introduce late documents and associated evidence from Mr McDonald on the central normal-depot issue. The excluded supplementary evidence of Transco’s witnesses was also relevant to that issue. It was unjust to treat counsel’s attempt to accommodate the late material, rather than objecting to it immediately, as a sufficient reason to refuse Transco permission to adduce its evidence.

5. The unfairness was compounded when, without notice, the judge restricted Transco to five further minutes of cross-examination of Mr McDonald. The opportunity to cross-examine Mr Hayes did not cure that unfairness. The combined rulings deprived Transco of a fair opportunity to present and test relevant evidence on a key issue. They were a serious procedural irregularity and made the decision unjust.

6. The court’s conclusion was fact-specific and did not restrict the proper use of judicial powers to control prolix cross-examination. Reasonable notice of an intended curtailment may be important. The judge’s refusal to permit two further late witnesses was not flawed. Costs below and on appeal were costs in the case.

• Court of Appeal (Civil Division) — allowed Transco’s appeal on the procedural-irregularity ground, set aside the result below, and ordered a new trial ([2003] EWCA Civ 1261).
• Birkenhead County Court — on 6 November 2002, His Honour Judge Trigger gave judgment for the claimants for disturbance allowances, interest and costs.