Donaldson v Wilson

On a renewed application for permission to appeal, the Court of Appeal held that the court must assess the particular facts and circumstances of the case. Permission should ordinarily be refused where the proposed appeal has no real prospect of success. Wider ramifications, including concern that a decision may impose an unrealistic or previously unrecognised standard of care, may nevertheless provide a compelling reason for the appeal to proceed. Permission may be granted subject to protective costs conditions.

The claimant obtained judgment on liability in the Middlesbrough County Court before Mr Recorder Bullock after he was seriously injured when his motorcycle collided with cattle that had escaped from the defendant’s field and reached the main road. The recorder found that the defendant had breached his duty of care because the risk was foreseeable and inexpensive measures could have secured the gate.

The defendant sought renewed permission to appeal. The central issues were whether the proposed appeal had a real prospect of success and whether the insurers’ concern about wider consequences supplied a compelling reason for the appeal to proceed.

The Court of Appeal granted the renewed application for permission to appeal, but made permission conditional on the defendant accepting specified costs protection.

1. Real prospect of success. The court adopted the approach that the facts and circumstances of the particular case must be assessed. The recorder was entitled to conclude that the defendant owed and had breached a duty of care. The risk that a gate might be left open, cattle might escape through the adjoining property and cattle might reach the road was foreseeable. Reasonable precautions, including self-closing gates costing approximately £30 to £40, were available. The court therefore considered that the proposed appeal had no real prospect of success.
2. Compelling reason. The defendant’s insurers contended that the decision imposed an unrealistic and wider standard of care on farmers and animal owners. Although the first limb of the permission test was not satisfied, the court was willing to regard the potential ramifications as a compelling reason for allowing the appeal to proceed.
3. Conditions. Permission was granted only on condition that the defendant indemnify the claimant for his costs in the Court of Appeal, including any respondent’s notice, and that the costs order below remain undisturbed. The defendant was allowed 21 days, rather than the usual seven, to serve the notice of appeal while the conditions were considered.

The formal order was: application granted; no order for costs.

• Court of Appeal (Civil Division): On 26 January 2004, the court granted the defendant’s renewed application for permission to appeal, subject to costs conditions.
• Middlesbrough County Court: Mr Recorder Bullock gave judgment for the claimant on liability on 24 October 2003 and gave further directions for the remaining conduct of the trial.