Cooper v Floor Cleaning Machines & Anor

In a civil road-traffic claim involving conflicting accounts, a judge should ordinarily analyse all available evidence and decide which account is more probable. Resort to the burden of proof without making findings is reserved for the rare case of an intractable evidential tangle. This is especially so where objective or circumstantial pointers exist. If the judge is contemplating that course and it has not been addressed in submissions, the possibility should be raised with the advocates. On appeal, the appellate court may make the necessary findings itself where it is as well placed as the trial judge and remittal would cause disproportionate further cost.

Mrs Cooper and Mr Crompton were involved in a collision while leaving the M25 at junction 10. The trial was split, with liability determined first. The County Court judge was unable to accept either driver’s account and dismissed both the claim and the counterclaim on the basis that neither party had discharged the burden of proof.

Mr Crompton appealed. There was no cross-appeal by Mrs Cooper. The central questions were whether the judge should have analysed the evidence and decided which account was more likely, and whether the Court of Appeal should remit the matter or make the necessary findings itself.

Appeal allowed. Scott Baker LJ delivered the first judgment. Thomas LJ and Ward LJ agreed.

1. The trial judge erred by treating the evidence as requiring a choice between one wholly truthful account and one wholly untruthful account, and by failing to analyse which version was more likely. The ordinary judicial duty is to decide the relevant issues rather than evade them by resorting to the primary burden of proof.
2. Only in an exceptional case, where an intractable evidential tangle prevents the court from resolving the material factual issue, may it be legitimate or inevitable to conclude that the claimant has failed to prove the case. In such circumstances a counterclaim may also fail. Road-traffic cases will rarely fall within that category. Ashraf v Akram (unreported) 22 January 1999 and Morris v London Iron and Steel Company [1998] 1 QB 493 illustrated the exceptional situation. Sewell v Electrolux Ltd (unreported) 8 October 1997 illustrated why the burden of proof cannot replace findings where the evidence can be analysed.
3. If a judge is considering deciding a case on the burden of proof, and that possibility has not been canvassed in final submissions, it should be raised with the advocates before judgment. This enables the judge to receive assistance on the authorities and on the factual analysis.
4. The available evidence, including the post-accident conversation, Mr Crompton’s familiarity with the junction and the vehicle damage, made his account more likely. Mrs Cooper was therefore responsible for the collision. There was no sufficient evidential basis for a finding of contributory negligence against Mr Crompton. The inference in Baker v Market Harborough Industrial Co-operative Society [1953] 1 WLR 1472 was distinguishable.
5. The Court of Appeal was in as good a position as the trial judge to make the findings. The case was not remitted. Judgment was entered for Mr Crompton on the cross-claim, with costs here and below, to be assessed if not agreed.

• Court of Appeal (Civil Division) — On 20 October 2003, the appeal was allowed and judgment was entered for the defendant on the cross-claim: [2003] EWCA Civ 1649.
• County Court — On 10 April 2003, Judge Cook dismissed both the claim and counterclaim after finding that neither party had discharged the burden of proof.